IN RE: Cynthia RODRIGUEZ (2020)

Determination of New York City Department of Housing Preservation and Development, dated August 16, 2017, which, after a hearing, found that petitioner failed to meet her burden of proving that her deceased grandmother's apartment was her primary residence since the inception of her occupancy in 2005, 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 [Shlomo Hagler, J.], entered August 8, 2018), dismissed, without costs.

Substantial evidence supports the hearing officer's determination that petitioner failed to prove her primary residency since the inception of her occupancy in the subject apartment in 2005 (300 Gramatan Ave. Assoc. v. State Div. of Human Rights, 45 N.Y.2d 176, 180, 408 N.Y.S.2d 54, 379 N.E.2d 1183 [1978]). According to 28 RCNY 3–02(n)(4), “[i]t is required that the apartment of the tenant/cooperator be at initial occupancy and continue to be his or her primary place of residence.” As the presumptive shareholder and cooperator, petitioner bore the burden of proving that she maintained the apartment as her primary residency at initial occupancy and continuously thereafter, which she failed to do (see 28 RCNY 3–02(n)(4)(iv); Matter of Giddings v. New York City Dept. of Hous. Preserv. & Dev., 138 A.D.3d 508, 509, 30 N.Y.S.3d 43 [1st Dept. 2016]).

While petitioner's name appeared on the income affidavits up to 2009, and then again in 2014, her name did not appear on the income affidavits for the years 2010 through and including 2013. Although there are instances “where the evidence of primary residence during the operative period is so overwhelming that the absence of an income affidavit may be overlooked” (Matter of Borekas v. New York City Dept. of Hous. Preserv. & Dev., 151 A.D.3d 539, 540, 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]), this is not such a case. Petitioner failed to produce utility bills, a driver's license, or a vehicle registration for that period (see 28 RCNY 3–02[n][4][i]), nor did she begin filing her tax returns with the address of the apartment until after her grandmother's death, a fact which the hearing officer found “in itself mandates a finding that the apartment was not her primary residence” (see Matter of Ayvazayan v. City of N.Y. Dept. of Hous. Preserv. & Dev., 129 A.D.3d 494, 9 N.Y.S.3d 876 [1st Dept. 2015]).

Petitioner's argument that the mandatory time frame for purposes of residency proceedings is only one year prior to the housing corporation's challenge to the tenant-cooperator's residency, which here, was the date of the May 11, 2016 stipulation, is inconsistent with the statutory language and relevant case law (see Matter of Trilling v. New York City Dept. of Hous. Preserv. & Dev., 169 A.D.3d 492, 92 N.Y.S.3d 622 [1st Dept. 2019]; Giddings, 138 A.D.3d at 508–509, 30 N.Y.S.3d 43).

Under these circumstances, “the issuance of a certificate of eviction does not shock the conscience” (Matter of Charles v. New York City Dept. of Hous. Preserv., 144 A.D.3d 444, 39 N.Y.S.3d 786 [1st Dept. 2016]).