IN RE: John GREENE (2008)

Determination of respondent Department of Housing Preservation and Development (HPD), dated September 27, 2006, which, after hearing, granted the request of respondent Mutual Redevelopment Houses, Inc. (Mutual) for a certificate of eviction, unanimously confirmed, the petition denied, and the proceeding brought pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, New York County [Carol R. Edmead, J.], entered May 14, 2007), dismissed, without costs.

 HPD's determination that the subject apartment was not petitioner's primary residence, a violation of his occupancy agreement, which incorporated the terms of a 1987 regulatory agreement between the City and Mutual, is supported by substantial evidence (see Matter of Kaufman v. New York City Dept. of Hous. Preserv. & Dev., 45 A.D.3d 257, 845 N.Y.S.2d 243 [2007];  Matter of Howard v. New York City Dept. of Hous. Preserv. & Dev., 294 A.D.2d 278, 742 N.Y.S.2d 283 [2002], lv. denied 99 N.Y.2d 504, 754 N.Y.S.2d 203, 784 N.E.2d 76 [2002] ).   Petitioner admitted that he resided in another location, he offered no evidence that he had ever resided in the subject apartment, and he testified that, despite his intention to live there with his domestic partner and their daughter, he never moved into the apartment with them.   Indeed, petitioner does not challenge these findings.   He argues instead that he was curing his noncompliance with the primary residence requirement of the aforementioned agreements, that Mutual is barred by laches or the statute of limitations, or both, from evicting him, and that unique circumstances render excusable his extended physical absence from the apartment.

 Petitioner's failure to use the apartment as his primary residence, as required by the agreements, is not curable (see e.g. Matter of O'Quinn v. New York City Dept. of Hous. Preserv. & Dev., 284 A.D.2d 211, 212, 726 N.Y.S.2d 644 [2001] ).   HPD's finding, which is supported by substantial evidence, that Mutual was unaware of petitioner's noncompliance defeats his laches defense (see Macon v. Arnlie Realty Co., 207 A.D.2d 268, 271, 615 N.Y.S.2d 28 [1994] ), and the continuing nature of petitioner's obligation to use the apartment as his primary residence renders the statute of limitations inapplicable (see generally Lenox Hill Hosp. v. Spitz, 1 Misc.3d 134(A), 2004 N.Y. Slip Op. 50027(U), 2004 WL 178625 [2004] ).   Finally, petitioner's explanations do not render his extended physical absence from the apartment “excusable for purposes of primary residence analysis” (Hudson St. Equities Group v. Escoffier, 11 Misc.3d 63, 64, 813 N.Y.S.2d 841 [2006], affd. 45 A.D.3d 371, 845 N.Y.S.2d 296 [2007] ).