Matter of Gottlieb v New York State Div. of Hous. & Community Renewal, 2011 NY Slip Op 09032 [90 AD3d 527]

Dcmbr 15, 2011

Appellate Division, First Department

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Borah, Goldstein, Altschuler, Nahins & Goidel, P.C., New York (Paul N. Gruber of counsel), for appellant.

Eric T. Schneiderman, Attorney General, New York (Patrick J. Walsh of counsel), for respondent.

Order and judgment (one paper), Supreme Court, New York County (Joan B. Lobis, J.), entered June 17, 2010, denying the petition to annul respondent Division of Housing and Community Renewal’s (DHCR) determination, dated March 20, 2009, that petitioner did not qualify for succession rights to the tenancy of his deceased father’s Mitchell-Lama apartment, unanimously affirmed, without costs.

Petitioner did not submit income affidavits or a notice of change demonstrating that he lived in the subject apartment with his father for two years preceding his father’s death in March 1994. To the contrary, the income affidavit that he submitted for 1992 notes that he began residing in the apartment “as of 10/1/92″—less than two years before his father died. Thus, DHCR’s determination that petitioner failed to demonstrate that the apartment was his primary residence for two years before his father’s death was rationally based in the record and was not arbitrary and capricious ( see Taylor v New York State Div. of Hous. & Community Renewal , 73 AD3d 634 [2010]; Matter of Greichel v New York State Div. of Hous. & Community Renewal , 39 AD3d 421 , 422 [2007]).

Notwithstanding that respondent Southbridge Towers, Inc. accepted maintenance payments from petitioner and permitted him to occupy the apartment for more than 13 years after his father died, estoppel cannot be invoked to prevent DHCR from carrying out its statutory duties ( Matter of Schorr v New York City Dept. of Hous. Preserv. & Dev. , 10 NY3d 776 [2008]; Taylor , 73 AD3d at 634).

We have considered petitioner’s remaining arguments and find them unavailing. Concur—Tom, J.P., Friedman, Freedman, Richter and Manzanet-Daniels, JJ. [Prior Case History: 2010 NY Slip Op 31523(U).].