In the Matter of Manhattan Plaza Assoc., L.P. v. Department of Hous. Preserv. & Dev. Of City of N.Y., 2004 NY Slip Op 24081 (NY 2/20/2004)

CourtNew York Court of Appeals
Writing for the CourtRosalyn Richter
Citation2004 NY Slip Op 24081
Decision Date20 February 2004

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2004 NY Slip Op 24081
Supreme Court of the State of New York, New York County.
February 20, 2004.

Lebensfeld Borker & Sussman LLP (Stephen Sussman of counsel), for petitioner.

Michael A. Cardozo, Corporation Counsel, New York City (Deborah Rand of counsel), for respondents.



Petitioner Manhattan Plaza Associates, L.P., a limited-profit housing company formed under article II of the Private Housing Finance Law (Mitchell-Lama Law), is the owner of a housing development in midtown Manhattan. This housing development receives a "project based" section 8 rent subsidy under 42 USC § 1437.1 Respondent Department of Housing Preservation and Development of the City of New York (HPD) is the supervising agency of Manhattan Plaza and administers the section 8 program. Respondent Michael Madden is the son of Matilda and Joseph Madden, the former tenants of record in one of Manhattan Plaza's rental units, apartment 11C at 484 West 43rd Street. According to the petition, respondent Marilyn Madden is Michael's wife.2

The essential facts are not in dispute. On September 10, 2001, Matilda Madden died. Shortly thereafter, on October 8, 2001, Joseph Madden also died. Manhattan Plaza then served Michael and Marilyn Madden with notice that it would be seeking approval from HPD to evict them from the apartment. In December 2001 and February 2002, HPD held a hearing, pursuant to title 28 of the Rules of the City of New York, on Manhattan Plaza's request for approval of a certificate of eviction. On May 30, 2002, HPD Administrative Law Judge (ALJ) Helen Levy issued a decision denying Manhattan Plaza's request for a certificate of eviction and finding that Michael Madden was entitled to succession rights with respect to his parents' apartment. In this CPLR article 78 proceeding, Manhattan Plaza seeks a judgment annulling HPD's determination and directing the issuance of a

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certificate of eviction. For the reasons discussed herein, the court sustains HPD's decision and dismisses this proceeding.

In her decision, ALJ Levy explained that pursuant to HPD rules and regulations, in order to qualify for succession rights in the subject apartment, an occupant must either be approved from a waiting list, or must qualify as a family member who had co-occupied the apartment with the tenant of record for at least two years prior to the vacatur of that tenant.3 (See 28 RCNY 3-02 [p].) These regulations, at the time, provided that "[t]he failure of the family member who is seeking to succeed to possession of the apartment to appear on the appropriate income affidavits4 creates a presumption that he or she did not reside in the apartment as a primary residence . . . The burden of proof is on said family member to show use of the apartment as his or her primary residence during the required period to be eligible to succeed to possession." (28 RCNY 3-02 [p] [former (3)].) ALJ Levy determined that the presumption created by this regulation could be overcome if the applicant could prove by other evidence that he in fact resided in the apartment for the requisite period.

ALJ Levy found that Matilda and Joseph Madden were the tenants of record pursuant to a March 1998 lease. Their son, Michael Madden, had never been recognized by Manhattan Plaza as an occupant of the apartment, and had never requested or been issued an access card. In addition, he never appeared on the annual certification of income and occupancy forms filed by his mother. Michael Madden's testimony at the hearing, however, revealed that he lived in the apartment for approximately three years with his parents, both of whom were very ill. Michael Madden stated that he was well known to the security guards in the building, and had gained entry to the building by either being "buzzed up" by his parents, or by using their access cards.

ALJ Levy noted that Michael Madden submitted documentary evidence supporting his claim that he occupied the apartment as his primary residence. This evidence included Michael Madden's medical bills and health insurance documentation from October 1999, November 1999 and February 2000, a November 1999 notice from the Human Resources Administration regarding food stamps, Department of Health notifications dated December 2000 and Joseph Madden's death certificate. All of these documents identify the subject apartment as Michael Madden's address. In addition, Michael Madden submitted a letter from his parents' doctor stating that Michael had lived with his parents and had taken care of them for the past two years.5 ALJ Levy noted that Manhattan Plaza's only witness had no personal knowledge about the occupancy of the apartment.

ALJ Levy concluded that Michael Madden had met the burden of proving that he resided in the subject apartment as his primary residence for the two years before the death of his father. ALJ

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Levy based her decision on Michael Madden's unrebutted testimony and the "substantial documentation" establishing the subject apartment as his residence. ALJ Levy concluded that Michael Madden was entitled to succession of the apartment and denied Manhattan Plaza's request for a certificate of eviction.

In this proceeding, Manhattan Plaza does not attack any of the factual findings made by ALJ Levy. Thus, Manhattan Plaza does not contest that Michael Madden is the son of the deceased lawful tenants of the apartment, and that the apartment was his primary residence for at least two years before his father's death. Rather, Manhattan Plaza argues that ALJ Levy's decision was based on an error of law. Specifically, Manhattan Plaza maintains that under federal law, as interpreted by the Court of Appeals, the failure of Michael Madden to have appeared on the annual income and family composition affidavits is dispositive of his claim to succession, regardless of the fact that he actually lived in the apartment as his primary residence for the applicable period. Thus, Manhattan Plaza contends that the HPD rule (28 RCNY 3-02 [p] [former (3)]) allowing an occupant to rebut the presumption created by the failure to have been listed on the annual certification forms is violative of federal law.6

Manhattan Plaza rests its argument on the Court of Appeals decision in Matter of Evans v. Franco (93 NY2d 823 [1999]). In that case, the petitioner brought a CPLR article 78 proceeding against the...

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