IN RE: Patricia KANDER (2025)

Order, Supreme Court, New York County (Denise M. Dominguez, J.), entered September 14, 2023, which denied the petition to annul the determination of respondent New York City Department of Housing Preservation and Development (HPD), dated April 27, 2022, denying petitioner's application for succession rights to an affordable housing unit under the Mitchell–Lama program, and dismissed the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.

HPD rationally determined that petitioner's documentation was insufficient to prove that she co-resided in the apartment as a primary residence with her son, the tenant of record, for one year before he vacated the apartment (see Rules of City of N.Y. Hous Preserv and Dev [28 RCNY] § 3–02[n][4], [p][3];  Matter of Kralik v. New York City Dept. of Hous. Preserv. & Dev., 223 A.D.3d 468, 469, 203 N.Y.S.3d 537 [1st Dept. 2024], lv denied 41 N.Y.3d 910, 2024 WL 3057602 [2024], cert denied ––– U.S. ––––, ––– S.Ct. ––––, ––– L.Ed.2d ––––, 2024 WL 4805915 [Nov. 18, 2024, No. 24–412]).  Although petitioner submitted tax returns and income affidavits for the relevant co-residency period, she failed to submit bank statements, a driver's license, motor vehicle registration, voting registration, utility bills, or other documentation connecting her to the apartment (see Matter of Mantilla v. New York City Dept. of Hous. Preserv. & Dev., 230 A.D.3d 1006, 1007–1008, 219 N.Y.S.3d 242 [1st Dept. 2024]).  Furthermore, a deed of sale for petitioner's other home listed that home as her address, thus creating inconsistencies in her application materials (see Matter of Halcomb v. New York City Dept. of Hous. Preserv. & Dev., 187 A.D.3d 673, 674, 135 N.Y.S.3d 366 [1st Dept. 2020]).

Petitioner may not rely on documents submitted for the first time with her petition to prove residency, as “[j]udicial review of administrative determinations is confined to the facts and record adduced before the agency” (Matter of Yarbough v. Franco, 95 N.Y.2d 342, 347, 717 N.Y.S.2d 79, 740 N.E.2d 224 [2000] [internal quotation marks omitted]).

HPD's determination did not deprive petitioner of due process, as petitioner “lacked [a] property interest” in the right of succession to her son's Mitchell–Lama housing unit (Matter of Cadman Plaza N. v. New York City Dept. of Hous. Preserv. & Dev., 290 A.D.2d 344, 344, 737 N.Y.S.2d 590 [1st Dept. 2002]).  Even if petitioner had a protected property interest, “HPD's procedures pursuant to its regulations for determining succession rights satisfy due process” (Matter of Horne v. Wambua, 143 A.D.3d 605, 606, 39 N.Y.S.3d 457 [1st Dept. 2016]).

We have considered petitioner's additional arguments and find them unavailing.