Wilson v. N.Y.C. Dep't of Hous. Preservation & Dev.

• Decision Date: 21 December 2016
• Parties: In the Matter of Lawrence S. WILSON, petitioner-respondent, v. NEW YORK CITY DEPARTMENT OF HOUSING PRESERVATION AND DEVELOPMENT, respondent-appellant, et al., respondents; Nickita Skopelitis, et al., intervenors-appellants.
• Court: New York Supreme Court — Appellate Division

145 A.D.3d 905

44 N.Y.S.3d 135

2016 N.Y. Slip Op. 08533

In the Matter of Lawrence S. WILSON, petitioner-respondent,

v. NEW YORK CITY DEPARTMENT OF HOUSING PRESERVATION AND DEVELOPMENT, respondent-appellant, et al., respondents;Nickita Skopelitis, et al., intervenors-appellants.

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

Dec. 21, 2016.

Zachary W. Carter, Corporation Counsel, New York, N.Y. (Pamela Seider Dolgow, Rachel Moston, and Kathy Chang Park of counsel), for respondent-appellant.

Himmelstein, McConnell, Gribben, Donoghue & Joseph, New York, N.Y. (David Hershey–Webb of counsel), for intervenors-appellants.

Lawrence S. Wilson, Brooklyn, N.Y., petitioner-respondent pro se.

CHERYL E. CHAMBERS, J.P., THOMAS A. DICKERSON, COLLEEN D. DUFFY, and FRANCESCA E. CONNOLLY, JJ.

Separate appeals from an order and judgment (one paper) of the Supreme Court, Kings County (Bernadette Bayne, J.), dated June 11, 2014. The order and judgment, insofar as appealed from by the New York City Department of Housing Preservation and Development, granted a petition pursuant to CPLR article 78. The order and judgment, insofar as appealed from by the intervenors, granted the petition and, in effect, denied that branch of the intervenors' motion which was to direct the expeditious processing of an application.

ORDERED that the order and judgment is modified, on the law, by deleting the provision thereof granting the petition pursuant to CPLR article 78, and substituting therefor a provision denying the petition and dismissing the proceeding; as so modified, the order and judgment is affirmed insofar as appealed from, with costs to the appellant New York City Department of Housing Preservation and Development payable by the petitioner.

The petitioner is a tenant/cooperator in a building governed by the Mitchell–Lama program (see Private Housing Finance Law § 10 et seq. ). In 2014, the petitioner sought a transfer to a different apartment within that same building. At that time, the petitioner and his partner occupied a two-bedroom apartment; they sought to transfer to a different two-bedroom apartment. Nickita Skopelitis and Joann Papamichael, who live in the subject building along with their child, sought a transfer to the same two-bedroom apartment that was sought by the petitioner. The New York City Department of Housing Preservation and Development (hereinafter HPD) denied the petitioner's application on the ground that he did not meet the applicable occupancy requirements. As relevant here, those regulations provide that, in a Mitchell–Lama building, a two-bedroom apartment may be occupied only by a household consisting of "[n]o fewer than three persons, a brother and sister who are both adults, or a parent or guardian with at least one child" (28 RCNY 3–02[m] [iii] ). At the time of the application, the petitioner resided only with his partner, whom he subsequently married.

The petitioner commenced this proceeding pursuant to CPLR article 78 to review the HPD's determination. Skopelitis and Papamichael (hereinafter together the intervenors) moved, inter alia, for leave to intervene in the proceeding and to direct the HPD to "expeditiously process" their application for a transfer to the subject apartment. In the order and judgment appealed from, the Supreme Court granted the CPLR article 78 petition, granted that branch of the intervenors' motion which was for leave to intervene in the proceeding, and, in effect, denied that branch of the intervenors' motion which was to direct the HPD to "expeditiously process" their application for a transfer to the subject apartment. The HPD and the intervenors separately appeal.

In a CPLR article 78 proceeding to review a determination of an administrative agency, the standard of judicial review is whether the determination was made in violation of lawful procedure, was affected by an error of law, or was arbitrary and capricious or an abuse of discretion (see CPLR 7803[3] ; Matter of Gottlieb v. City of New York, 129 A.D.3d 724, 725, 10 N.Y.S.3d 542 ; Matter of JP & Assoc. Corp. v. New York State Div. of Hous. & Community Renewal, 122 A.D.3d 739, 739, 996 N.Y.S.2d 633 ). An administrative agency's interpretation of the regulations it administers is entitled to deference, and must be upheld if reasonable (see Matter of ATM One, LLC v. New York State Div. of Hous. &...