IN RE: Rachel WALDMAN (2007)

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

IN RE: Rachel WALDMAN, et al., Petitioners-Respondents, v. NEW YORK CITY DEPARTMENT OF HOUSING PRESERVATION AND DEVELOPMENT, Respondent-Appellant, Kent Village Housing Company, Inc., Respondent.

Decided: January 18, 2007

TOM, J.P., MAZZARELLI, SAXE, MARLOW, CATTERSON, JJ.

Michael A. Cardozo, Corporation Counsel, New York (Victoria Scalzo of counsel), for appellant. Tenenbaum & Berger, LLP, Brooklyn (David M. Berger of counsel), for respondents.

Order and judgment (one paper), Supreme Court, New York County (Walter B. Tolub, J.), entered January 23, 2006, which, insofar as appealed from, granted petitioners' application to annul respondent New York City Department of Housing Preservation and Development (HPD)'s determinations denying petitioners succession rights to the subject Mitchell-Lama apartments, and remanded for further proceedings, unanimously affirmed, without costs.

HPD improperly circumvented its rules and regulations by proceeding pursuant to 28 RCNY 3-02(p). That regulation, which sets forth the process by which an individual can seek to succeed to the apartment of a family member, does not give HPD or the housing company the authority to initiate or prosecute proceedings regarding improperly obtained family succession rights. Instead, because petitioners had been issued leases by the housing company, albeit without the required approval of HPD, the proper procedure was for the housing company to commence lease termination proceedings pursuant to 28 RCNY 3-18 (see e.g. Matter of Verdell v. Lincoln Amsterdam House, Inc., 27 A.D.3d 388, 813 N.Y.S.2d 68 [2006] ). We have considered HPD's other contentions and find them unavailing.

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