Matter of H.W. v New York City Dept. of Hous. Preserv. & Dev., 2024 NY Slip Op 05405 [231 AD3d 672]

October 31, 2024

Appellate Division, First Department

[*1]

In the Matter of H.W., Appellant,

v

New York City Department of Housing Preservation and Development, Respondent.

Mischel & Horn, P.C., New York (Scott T. Horn of counsel), for appellant.

Muriel Goode-Trufant, Acting Corporation Counsel, New York (Jennifer Lerner of counsel), for respondent.

Order, Supreme Court, New York County (Laurence L. Love, J.), entered May 31, 2023, which denied the petition to annul respondent’s determination, dated December 14, 2021, denying petitioner’s claim for succession rights to an apartment, unanimously affirmed, without costs.

Respondent had a rational basis for concluding that petitioner did not establish that he was entitled to succession rights to his aunt’s apartment. As is relevant here, 28 RCNY 3-02 (p) (3) requires petitioner to establish co-residency with his aunt, the tenant of record, at the commencement of their relationship upon his birth. Petitioner did not establish by credible and sufficient documentation when the aunt vacated the apartment. Therefore, petitioner failed to establish that he resided with her in the apartment at the commencement of their relationship.

Moreover, petitioner’s claim was also properly denied because he was in privity with his mother who asserted the same claim and was rejected based on her failure to prove when the aunt vacated the apartment. Petitioner and his mother had the same interest in succeeding to his aunt’s apartment, and his mother fully litigated her claim, which was based on the same facts and evidence as petitioner’s claim.

We have considered petitioner’s remaining arguments and find them unavailing. Concur—Webber, J.P., Oing, Kapnick, Kennedy, JJ..