King-Rubie v. Wambua

141 A.D.3d 589

34 N.Y.S.3d 590

2016 N.Y. Slip Op. 05499

In the Matter of Haile KING–RUBIE, appellant,

v.Mathew M. WAMBUA, etc., respondent.

Supreme Court, Appellate Division, Second Department, New York.

July 13, 2016.

Marc P. Gershman, Mineola, N.Y., for appellant.

Zachary W. Carter, Corporation Counsel, New York, N.Y. (Richard P. Dearing and Jonathan A. Popolow of counsel), for respondent.

RUTH C. BALKIN, J.P., L. PRISCILLA HALL, BETSY BARROS, FRANCESCA E. CONNOLLY, JJ.

In a proceeding pursuant to CPLR article 78 to review a determination of the New York City Department of Housing Preservation and Development dated January 16, 2013, that the petitioner does not have succession rights to a certain Mitchell–Lama apartment, the petitioner appeals from a judgment of the Supreme Court, Kings County (Sweeney, J.), dated December 18, 2013, which, in effect, denied the petition and dismissed the proceeding.

ORDERED that the judgment is reversed, on the law, with costs, the petition is granted, the determination of the New York City Department of Housing Preservation and Development dated January 16, 2013, is aned, and the New York City Department of Housing Preservation and Development is directed to grant the petitioner's application for succession rights to the subject apartment.

The determination of the New York City Department of Housing Preservation and Development (hereinafter DHPD) that the petitioner did not have succession rights to a certain apartment located in a Mitchell–Lama cooperative housing development (see Private Housing Finance Law § 10 et seq. ), owned by Lindsay Park Housing Corporation, was arbitrary and capricious and lacked a rational basis in the record (see CPLR 7803[3] ). Under the circumstances of this case, the petitioner, who has Down syndrome, established that he was a “family member” of the vacating tenant of record, his great aunt, by demonstrating that he resided with his great aunt in the subject apartment as his primary residence, and proving “emotional and financial commitment and interdependence” between himself and his great aunt (28 RCNY 3–02[p] [2][ii][B]; see RHM Estates v. Hampshire, 18 A.D.3d 326, 795 N.Y.S.2d 214 ; see also Hazel Towers Co., L.P. v. González, 41 Misc.3d 1230[A], 2013 N.Y. Slip Op. 51937[U], 2013 WL 6170882 [Civ.Ct. City N.Y., Bronx County] ).

Further, the petitioner established that the apartment was his primary residence for the relevant one-year co-residency period prior to his great aunt's death on February 3, 2012 (see 28 RCNY 3–02[p][3] ). In this regard, the petitioner submitted income affidavits for 2005 through 2010, which demonstrated that he was included as a member of his great aunt's household; the income affidavit for 2011 was not due before the great aunt's death on February 3, 2012.

Beyond the income affidavits, the petitioner submitted additional evidence to demonstrate that the subject apartment was his primary residence during the relevant co-tenancy period. In 2011, when the petitioner turned 21 years old, he submitted a recertification package to the DHPD. The package was approved in December 2011, and the petitioner was recertified as part of the family composition of the subject apartment.

In addition, the petitioner submitted a DHPD Rent Breakdown dated December 29, 2011, which listed him as being part of the family composition. Furthermore, a billing statement from the Harlem School of the Arts, where the petitioner attended high school, dated August 24, 2011, listed the subject apartment as the petitioner's address. The record also includes the petitioner's interim New York State Identification Card,...