IN RE: Chiffon FITZPATRICK (2019)

Judgment, Supreme Court, New York County (Manuel J. Mendez, J.), entered August 23, 2017, denying the petition to annul the determination of the Department of Housing Preservation and Development of the City of New York (HPD), dated November 23, 2016, which denied petitioner's application for succession rights to a Mitchell–Lama apartment, and dismissing the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.

HPD's denial of petitioner's application for succession rights to a Mitchell–Lama apartment has a rational basis and is not arbitrary and capricious (see CPLR 7803[3];  Matter of Pell v. Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 N.Y.2d 222, 231, 356 N.Y.S.2d 833, 313 N.E.2d 321 [1974] ).  It is undisputed that petitioner was not listed as a co-tenant on the income affidavits for the entire two-year period immediately preceding the death of the tenant of record (from February 1, 2014 to February 1, 2016) (see Matter of Borekas v. New York City Dept. of Hous. Preserv. & Dev., 151 A.D.3d 539, 55 N.Y.S.3d 49 [1st Dept. 2017], lv denied 29 N.Y.3d 1106, 61 N.Y.S.3d 194, 83 N.E.3d 203 [2017];  see also 28 RCNY 3–02[p][3] ).  The evidence of petitioner's primary residence is not so overwhelming that the absence of an income affidavit listing her may be overlooked (see Borekas, 151 A.D.3d at 539–540, 55 N.Y.S.3d 49;  see also Matter of Murphy v. New York State Div. of Hous. & Community Renewal, 21 N.Y.3d 649, 655, 977 N.Y.S.2d 161, 999 N.E.2d 524 [2013] ).  Petitioner's individual 2014 tax returns specify a Pennsylvania address only and show her as a resident of Pennsylvania only (see 28 RCNY 3–02[n][4][I], [iv];  Matter of Hochhauser v. City of N.Y. Dept. of Hous. Preserv. & Dev., 48 A.D.3d 288, 853 N.Y.S.2d 22 [1st Dept. 2008].  Although other evidence supports petitioner's residence in New York, it was reasonable for HPD to resolve the inconsistencies in the record against petitioner (see Matter of Quan v. New York City Dept. of Hous. Preserv. & Dev., 70 A.D.3d 528, 895 N.Y.S.2d 75 [1st Dept. 2010], lv denied 17 N.Y.3d 703, 2011 WL 2314418 [2011] ).

Petitioner's belated attempt to assert succession rights on behalf of her daughter is unpreserved, as this argument was not raised before HPD (see Matter of Hairston v. New York City Hous. Auth., 144 A.D.3d 416, 40 N.Y.S.3d 115 [1st Dept. 2016] ).

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