Matter of Lumsby v Donovan
2008 NY Slip Op 03065 [50 AD3d 318]
April 3, 2008
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, June 18, 2008


In the Matter of Jean Nelson Lumsby et al., Petitioners,
v
Shaun Donovan, as Commissioner of the New York City Department of Housing Preservation and Development, et al., Respondents.

—[*1] Wilmer Hill Grier, Brooklyn, for petitioners.

Michael A. Cardozo, Corporation Counsel, New York (Susan Paulson of counsel), for municipal respondents.

Kagan Lubic Lepper Lewis Gold & Colbert, LLP, New York (Fran I. Lawless of counsel), for 158 St. Riverside Drive Housing Co., Inc., respondent. Determination of respondent agency, dated November 27, 2006, to issue a certificate of eviction, unanimously confirmed, the petition denied, and this proceeding (transferred to this Court by order of Supreme Court, New York County [Marcy L. Kahn, J.]), entered on or about May 10, 2007, dismissed, without costs.

The finding that petitioner mother Jean Nelson Lumsby did not maintain the subject apartment as her primary residence for many years is supported by substantial evidence (see Matter of Shi Yi Tang v New York City Dept. of Hous. Preserv. & Dev., 29 AD3d 470 [2006]). Since the mother was not occupying the apartment during the relevant period, petitioner Collette Lumsby could not establish succession rights through her (see Matter of Pietropolo v New York City Dept. of Hous. Preserv. & Dev., 39 AD3d 406 [2007]). Concur—Saxe, J.P., Sweeny, McGuire and Acosta, JJ.