Petitioner, Franklyn R. Bonfante, appearing pro se, seeks a judgment pursuant to CPLR Article 78, reversing and annulling the determination of respondent the Department of Housing Preservation and Development ("HPD") which issued a certificate of eviction upon finding that petitioner was not entitled to succession rights to a Mitchell-Lama cooperative apartment. Petitioner contends that the determination was arbitrary and capricious. [*2]

Petitioner claims succession rights to Apartment 16B (the "apartment") located at 2078 Second Avenue, New York, New York, based on the ground that he co-resided with his grandfather, Emilio Hernandez, the sole shareholder of record, for the requisite two-year period prior to his death on July 25, 2006. The building is owned by respondent Franklin Plaza Apartments, Inc. ("Franklin Plaza"), a limited profit housing company organized under Article II of the Private Housing Finance Law, also known as the Mitchell-Lama Law. Franklin Plaza is subject to the rules and regulations promulgated by HPD. Franklin Plaza commenced an earlier administrative proceeding against Hernandez based on its belief that the subject apartment was not Hernandez's primary residence. The administrative proceeding was settled by stipulation, dated September 7, 2005, pursuant to which the parties agreed, inter alia, that Hernandez had been out of occupancy since June 2004, as he has been living in a nursing home, and that he would return to the premises to reside as his primary residence on or before September 12, 2005.

Following his grandfather's death, petitioner sought succession rights to the apartment. By letter dated August 20, 2006, Franklin Plaza denied petitioner's claim based on the ground that petitioner failed to establish that he co-resided with his grandfather in the apartment for the requisite statutory two-year period as required under 28 RCNY § 3-02 (p) (3). Franklin Plaza based its determination on the following factors:

(1)petitioner did not co-reside with his grandfather in his apartment for the minimum two year period of time prior to his admission to the Terence Cardinal Cooke Health Care Center ("TCCHCC") on June 11, 2004;

(2)petitioner moved into the apartment with his girl friend only after his grandfather relocated to the TCCHCC;

(3)petitioner did not notify Franklin Plaza of his intention to reside in the apartment as his primary residence;

(4)petitioner's name does not appear on his grandfather's income affidavits for calendar years 2001 and 2002;

(5)Franklin Bonfante, Sr., who resides in Apartment 10D at 2081 Second Avenue, New York, New York, listed petitioner as a member of his household on his income affidavits for calendar years 2000, 2001, and 2002.

In a second letter to petitioner on October 10, 2006, AHO Lippa advised petitioner that she had not received any documentation from him, and, thus, would extend his time to submit any documents that he wished to have considered in his appeal to October 25, 2006. By response letter dated October 24, 2006, petitioner stated that he was seeking legal representation in the matter and needed more time to gather the documentation necessary to prove his co-residency in the apartment. By letter dated October 31, 2006, AHO Lippa extended petitioner's time to submit documentation to November 30, 2006. By letter addressed to AHO Lippa on December 11, 2006, Franklin Plaza forwarded a certified copy of petitioner's 2004 New York State tax return, which it had received from petitioner.

In a third letter to petitioner on December 13, 2006, AHO Lippa stated that the only documentation that she had received on his behalf was a copy of his 2004 tax return. AHO Lippa further stated that if petitioner had any other documentation he wished to be considered in his appeal, it must be received by her no later than December 27, 2006, as a decision would be issued thereafter. AHO Lippa did not receive any further documentation on petitioner's behalf prior to issuing her determination on January 25, 2007. In her determination, AHO Lippa found that petitioner failed to establish that he had resided in the apartment with his grandfather during the requisite two-year period, and that his name had not appeared on the income affidavit for calendar year 2002.

Petitioner commenced this Article 78 proceeding against respondents claiming, inter alia, that (1) his grandfather permanently vacated the apartment upon his death on July 25, 2006, and not in June 2004, as stated by AHO Lippa; (2) the subject apartment has been petitioner's primary residence since September 2003, when he moved into the apartment to care for his grandfather; (3) AHO Lippa never informed petitioner of the relevant two-year period in which he was required to show proof of co-residency with his grandfather; and (4) following his grandfather's death, AHO Lippa never arranged a meeting with petitioner.

The standard of review in an Article 78 proceeding is whether an administrative determination is arbitrary or capricious, and without a rational basis in the administrative record (Greystone Mgt. Corp. v Conciliation and Appeals Bd. of the City of New York , 94 AD2d 614, 616 [1983], affd 62 NY2d 763 [1984]). Where there is a rational basis for the determination, the courts will affirm it (see Strongin v Nyquist, 44 NY2d 943, 945 [1978], rearg denied 45 NY2d 839 [1978]; Pell v Bd. of Educ., 34 NY2d 222, 231). The court "is not to second-guess the wisdom of what an administrative agency has done, nor to reform the procedures and methods used by that agency" (Procaccino v Stewart, 32 AD2d 486, 489 [1969], affd 25 NY2d 301 [1969]). "[A]n administrative agency's construction and interpretation of its own regulations and of the statute under which it functions is entitled to the greatest weight" (Tommy & Tina, Inc. v Dept. of Consumer Affairs of the City of New York, 95 AD2d 724 [1983], citing Matter of Herzog v Joy, 74 AD2d 372, 375 [1980]). A rational or reasonable basis for an administrative agency determination exists if there is evidence in the record to support its conclusion (Sewell v City of New York, 182 AD2d 469 [1992], appeal denied 80 NY2d 756 [1992]).

"The Department of Housing Preservation and Development is vested with exclusive jurisdiction to determine the remaining-family-member claim in city-aided Mitchell-Lama housing" (Lindsay Park Hous. Corp. v Grant, 190 Misc 2d 777, 777 [2001]). To succeed to the leasehold [*4]rights of a Mitchell-Lama apartment a petitioner is required to make a three-part showing that he or she (1) is a member of the tenant's family; (2) resided with the tenant/cooperator in the apartment as a primary residence for a period of not less than two years; and (3) was listed on the income affidavits for at least the two consecutive annual reporting periods prior to the tenant/cooperator's permanent vacating of the apartment (28 RCNY § 3-02 [p] [3]; Matter of Shupack v Dayton Towers Corp., 203 AD2d 134 [1994]).

Here, the record clearly shows that the second and third elements required for succession rights were not satisfied. Petitioner failed to establish that he resided with his grandfather in the apartment as a primary residence for at least two years prior to his grandfather's admission to a nursing home on June 11, 2004 (June 2002 through June 2004), and that he has appeared on income affidavits for the requisite two-year period (see 28 RCNY 3-02 [p] [3]). Accordingly, petitioner's failure to appear on the appropriate income affidavit "creates a presumption that he did not reside in the apartment as a primary residence" (28 RCNY §3-02 [p] [3]; see also Chinatown Apartments, Inc. v Lee, 168 Misc 2d 990 [1995]). However, the presumption is rebuttable upon competent proof of such continuous residence (Matter of Alfred v Barrios-Paoli, 251 AD2d 659 [1998]).

Plaintiff fails to meet this burden. The court finds that there was a reasonable basis for HPD's determination that petitioner was not entitled to succeed to the tenancy of the subject apartment because he failed to establish that he co-resided in the apartment with his grandfather for the requisite two-year period (June 2002 through June 2004) prior to his grandfather's admission to a nursing home on June 11, 2004, and that his name appeared on his grandfather's income affidavit for calendar year 2002 (see 28 RCNY 3-02 [p] [3]). In determining that the requisite co-residency period was from June 2002 through June 2004, AHO Lippa found that:

"An earlier proceeding commenced against Mr. Hernandez was settled by a stipulation dated September 7, 2005. Franklyn Bonfante, Sr., the applicant's father, signed that stipulation on behalf of Mr. Hernandez. According to the stipulation, Mr. Hernandez had been in a nursing home since June 2004, but would return to the subject apartment by September 12, 2005.

"Although the tenant died in or about July 2006, he entered a nursing home in June 2004 and was not physically present in the subject apartment from that date until at least September 2005. No documentation was provided regarding the tenant's return to the subject apartment.

"No determination was made regarding the tenant/cooperator's primary residence; however, there could be no co-residency between the tenant/cooperator and the applicant in the subject apartment while the tenant was residing in a nursing home. Thus, for purposes of determining succession rights and the requisite co-residency period I shall apply June 2004 as the date that the tenant/cooperator of record vacated the subject apartment. The requisite co-residency period is thus from June 2002 through June 2004."

In determining that petitioner was not listed on his grandfather's income affidavits as a resident of the apartment for calendar year 2002, thereby ipso facto disqualifying petitioner from [*5]obtaining succession rights, AHO Lippa found that:

"According to the current HPD rules, effective February 1, 2003, an occupant must be included on the relevant income affidavits or income recertifications in order to be eligible for succession rights after the tenant/cooperator has permanently vacated the apartment. The current rule shall govern in all succession rights appeals involving income affidavits or income recertifications signed after February 1, 2003.

"Emilio Hernandez and his wife were the sole occupants of the subject apartment according to the income affidavit for calendar year 2002, which they signed on April 30, 2003. Neither Franklyn Bonfante, Jr. nor anyone else was included as an occupant of the subject apartment on the 2002 income affidavit signed by the tenant of record after February 1, 2003. Thus, neither Franklyn Bonfante, Jr. nor anyone else can be granted succession rights to the subject apartment according to the HPD rules.

"Franklyn Bonfante, Sr., resides in a different apartment at Franklin Plaza. I note that Franklyn Bonfante, Sr. included Franklyn Bonfante, Jr., the applicant for succession rights, as an occupant of his apartment on his 2002 income affidavit, signed by both Franklyn Bonfante Sr. and Franklyn Bonfante, Jr. on April 30, 2003.

"Since Franklyn Bonfante, Jr. was not included as an occupant of the subject apartment on the income affidavit for calendar year 2002, signed after February 1, 2003, he cannot be granted succession rights to the subject apartment according to the HPD rules."

With respect to petitioner's contention that his grandfather permanently vacated the apartment upon his death on July 25, 2006, and not when he was admitted to a nursing home in June 2004, AHO Lippa found that:

" even if I were to consider the date of the tenant's death as the date that he permanently vacated the subject apartment, the applicant would still not be entitled to succession rights to the subject apartment. Mr. Bonfante, Jr. has not submitted sufficient evidence to prove that he resided in the subject apartment as his primary residence with Mr. Hernandez from July 2004 through July 2006.

"Mr. Bonfante, Jr. did submit a certified copy of his 2004 New York State tax return which he filed on April 15, 2005. However, Mr. Bonfante, Jr. did not submit any other documentation proving that he resided in the subject apartment as his primary residence between July 2004 and July 2006. In light of the lack of any other documentation proving that Franklyn Bonfante, Jr. resided in the subject apartment [*6]as his primary residence, I do not consider his 2004 tax return to be sufficient to prove the requisite co-residency during the time period of July 2004 through July 2006.

"The applicant for succession rights has the burden of proving his entitlement to those rights. When June 2004 is used as the date the tenant vacated the apartment, Mr. Bonfante, Jr. cannot be granted succession rights because he was not included on the relevant income affidavit. If July 2006 is used as the date the tenant vacated the subject apartment, Mr. Bonfante, Jr. has failed to prove the required co-residency. Thus, regardless of his family relationship to the tenant of record, Franklyn Bonfante, Jr. is not entitled to succession rights to the subject apartment."

With respect to petitioner's contention that AHO Lippa never arranged a meeting with him following the death of his grandfather, HPD is not compelled to conduct a formal hearing. Pursuant to 28 RCNY 3-18, an administrative hearing is provided to a tenant/cooperator where the housing company seeks to determine whether to issue or deny a certificate of eviction. Moreover, the provisions of the RCNY governing claims of familial succession rights do not require that HPD conduct an administrative hearing, where, as here, petitioner is not listed on the certification forms (see Matter of Manhattan Plaza Assocs., L.P. v Dept. of Hous. Preserv. and Dev. of the City of New York, 3 Misc 3d 717 [2004], affd 8 AD3d 111 [2004]). Thus, AHO Lippa was entitled to base her decision solely on the documentary evidence.

With respect to petitioner's claim that AHO Lippa never informed him of the relevant two-year period in which he was required to show proof of co-residency with his grandfather, the record clearly shows that by letter dated August 20, 2006, Franklin Plaza informed petitioner that his application for succession rights to the apartment was denied because he failed to establish that he "co-reside[d] with [his grandfather] in his apartment for the minimum two year period of time prior to his admission to the Terence Cardinal Cooke Health Care Center ( TCCHCC') on June 11, 2004." Thus, petitioner's allegations of ignorance of the relevant two-year period in which he had to show proof of co-residency is lacking in merit.

In light of the foregoing, the record sufficiently supports a rational basis for HPD's determination upholding the denial of petitioner's request for succession rights to the apartment. Contrary to petitioner's contentions, HPD's determination is neither arbitrary nor capricious (see Matter of Chelrae Estates, Inc. v State Div. of Hous. & Community Renewal, 225 AD2d 387 [1996]).

As to the documents annexed to the instant petition in support of petitioner's claimed co-residency in the apartment from September 2003 through July 2006, which were not previously provided to HPD, judicial review of an administrative determination is limited to the record adduced before the agency (see Matter of Montalbano v Silva, 204 AD2d 457 [1994]; Matter of Plaza Realty Investors v New York City Conciliation and Appeals Bd., 110 AD2d 704 [1985]).

Accordingly, petitioner's application is denied and the petition is dismissed. This constitutes the decision, judgment and order of the court.