IN RE: Bertrand GIRIGORIE (2010)

Order and judgment, Supreme Court, New York County (Joan B. Lobis, J.), entered December 8, 2008, which, insofar as appealed from as limited by the brief, granted that part of the petition seeking to annul respondents' determination to deny petitioner Bertrand Girigorie, Jr. (Bertrand) succession rights to his deceased mother's apartment, to the extent of remanding the matter to respondent Department of Housing Preservation and Development for further proceedings to allow Bertrand to show that he resided in the apartment from June 2004 to June 2006, with particular emphasis on the period from June 2004 until November 2004, for which there was insufficient documentation, unanimously reversed, on the law, without costs, the petition denied, and the proceeding brought pursuant to CPLR article 78 dismissed.

Respondents' determination denying Bertrand succession rights to the subject apartment had a rational basis. The record establishes that, despite ample opportunity to do so, Bertrand is unable to demonstrate that the apartment was his primary residence “for a period of not less than two years immediately prior to [his mother's] permanent vacating of the apartment” (28 RCNY 3-02 [p][3]. Although Bertrand was listed on his mother's income affidavit for 2004, she never filed an affidavit for 2005 (see e.g. Matter of Callwood v. Cabrera, 49 AD3d 394 [2008]; 28 RCNY 3-02[p][3] ). Nor did Bertrand “provide [ ] proof that he ․ either filed a New York City Resident Income Tax return at the claimed primary residence for the most recent preceding taxable year for which such return should have been filed,” or that he was not legally obligated to file such a return (28 RCNY 3-02[n][4][iv] ). Accordingly, the petition should be dismissed inasmuch as the remand to provide Bertrand with additional time to produce the required evidence would be futile.