IN RE: Application

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

IN RE: Application, etc., Kerry O'QUINN, Petitioner, For a Judgment, etc., v. NEW YORK CITY DEPARTMENT OF HOUSING PRESERVATION & DEVELOPMENT, et al., Respondents.

Decided: June 19, 2001

ROSENBERGER, J.P., WILLIAMS, TOM, WALLACH and FRIEDMAN, JJ. Mark S. Friedlander, for Petitioner. Stephen J. McGrath, for Respondents.

Determination of respondent City Department of Housing Preservation and Development, dated December 1, 1999, after a hearing, to issue a certificate of eviction against petitioner requested by respondent Mitchell Lama housing company, 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 [Harold Tompkins, J.], entered May 26, 2000), dismissed, without costs.

 The determination that the subject apartment is not petitioner's primary residence is supported by substantial evidence, including, among other things, such “traditional indicia” of primary residence as Federal and nonresident State tax returns for the four tax years preceding institution of the proceeding, a driver's license and registration, and a voter registration, all listing a Texas address (see, Lesser v. Park 65 Realty Corp., 140 A.D.2d 169, 174, 527 N.Y.S.2d 787, lv. dismissed 72 N.Y.2d 1042, 534 N.Y.S.2d 940, 531 N.E.2d 660).   Petitioner's testimony did not refute this evidence but rather showed only a sporadic presence in the apartment, or so a reasonable fact finder could find (see, 300 Gramatan Ave. Assocs. v. State Div. Of Human Rights, 45 N.Y.2d 176, 179-182, 408 N.Y.S.2d 54, 379 N.E.2d 1183).   It does not avail petitioner to invoke RPAPL 753(4) and its 10-day-post-adjudication cure period, because RPAPL 753(4) does not apply to administrative proceedings (see, New York City Hous. Auth. v. Williams, 179 Misc.2d 822, 687 N.Y.S.2d 539), and also because nonprimary residence is not subject to cure (see, Matter of Stahl Assocs. Co. v. DHCR, 148 A.D.2d 258, 268, 542 N.Y.S.2d 982).   We have considered petitioner's other arguments and find them unavailing.