Petitioner Rachel Eisen ("Eisen") brings this Article 78 proceeding to vacate the determination of respondent New York State Division of Housing Preservation and Development ("HPD") dated November 29, 2006, which denied her succession rights to apartment 4F at 111 Clymer Street, Brooklyn, New York. For the following reasons, the matter is remanded to HPD for a reconsideration of the record consistent with this decision.

Facts

Respondent Kent Village Housing Company, Inc. ("Kent") is an Article II limited-profit housing company organized under the New York State Private Housing Finance Law (the "Mitchell-Lama Law"). Kent owns an apartment building located at 111 Clymer Street in Brooklyn (the "Building"). Eisen's brother, Moshe Lebowitz ("Lebowitz") was a tenant of apartment 4F (the "Apartment") in the Building pursuant to an Occupancy Agreement dated September 1, 1994 (the "Occupancy Agreement").

Lebowitz completed annual income certifications for the calendar years 2000, 2001 and 2002. By letter dated October 31, 2002, Lebowitz requested that Eisen and her three children be added to his lease because they wanted to move in with him. Kent completed an Interim Recertification Report on November 18, 2002, adding Ms. Eisen and her children as tenants of record.

By letter dated November 15, 2004, Lebovitz notified Kent that he had vacated the Apartment that month and indicated that Eisen would sign the renewal lease. Kent thereafter sent petitioner letters requesting documentation to verify her occupancy in between 2002 and 2004: a January 21, 2005 letter requested "W2 forms, certified tax returns and bills, etc." for [*2]2002 and 2003; a July 28, 2005 letter sought federal tax returns for those years, noting that "we are not requesting the certified copies; and an August 2, 2005 asked for "complete tax returns filed for the years 2002 and 2003," again noting that they need not be certified.

Nevertheless, on September 27, 2005, HPD wrote Eisen complaining that "[t]he documentation supplied was copies of uncertified tax returns for the year 2002 and 2003 . . . there was no additional documentation proving residency for these years." The letter threatened that legal action would be if "the failure to comply with certification and income affidavit procedures" was not remedied. On September 29, 2005, HPD sent a correction letter, noting that although certified copies of the 2002 and 2003 tax returns (apparently the state ones) had been supplied, they were not filed until 2005. The letter also noted that it had received new documentation consisting of 2002 and 2003 tax returns (apparently the federal ones), but they were uncertified. The letter concluded that "[a]lternate third party verification of your residence for 2002 and 2003 must be supplied or the housing company is instructed to proceed with legal action.

By letter dated January 18, 2006, Kent's counsel notified Eisen that the landlord was rejecting her claim to succession rights. Counsel asserted that the denial was based upon Eisen's failure to submit income affidavits and/or recertifications until Spring 2005; Lebowitz' vacatur of the Apartment in early 2003 (rather than 2004 as claimed); Eisen's failure to document an actual two-year co-tenancy with Lebovitz prior to his departure; and Eisen's failure to document a family relationship with Lebowitz.

Eisen was notified of her right to appeal the denial by letter dated February 1, 2006 from Administrative Hearing Officer Frances Lippa ("Lippa") of HPD's Division of Housing Supervision. Lippa advised Eisen that she could submit, no later than March 7, 2006, additional information establishing a family relationship with Lebowitz and proof of a two-year co-tenancy with him. The letter enclosed a copy of HPD's rules regarding succession rights and a list of suggested documentation. The letter advised Eisen that she "should submit as many of the listed documents" as she could, and noted that "[a]dditionally, you must submit copies of your tax returns or explain why you did not file tax returns for the relevant co-residency period . . . [t]he failure to provide tax returns could result in a finding that the subject apartment was not your primary residence."

Eisen's counsel timely filed an appeal and obtained an extension to submit documentation. In addition to evidence that Lebowitz resided in the Apartment until October 2004, Eisen submitted documentation in support of her contention that she resided there between 2002 and 2004. Specifically, she submitted a printout from the New York City Board of Elections indicating that she was registered to vote there between November 2002 and November 2004; prescription printouts from 2002; letters from her children's school and doctor attesting to her residency at the Apartment; and letters from the family's congregation, local pharmacy and grocery to the same effect. She also submitted state and federal tax returns, apparently the same ones that had been previously submitted.

Kent responded with an affirmation asserting, inter alia, that Eisen had failed to prove her relationship with Lebowitz. Kent also contended that Lebowitz had moved out in early 2003, relying on an internet search which linked his name to a different address during that period. Eisen thereafter submitted birth certificates for herself and Lebowitz, together with notarized letters from neighbors attesting to their residency in the Apartment between 2002 and 2004. She also submitted Lebowitz' 2003 and 2004 1099 forms and a letter from his employer, as well as [*3]voter registration documentation, in support of her claim that he resided there through late 2004.

By decision dated November 29, 2006 (the "Decision"), AHO Lippa denied Eisen's appeal and issued a Certificate of Eviction. As is relevant here, the hearing officer determined that Eisen was, in fact, a family member of Lebowitz. AHO Lippa also adopted, "for purposes of this decision only," Eisen's contention that her brother did not vacate the Apartment until November 2004, despite noting that the internet search raised a "legitimate question" as to whether he moved the previous year. Similarly, the hearing officer resolved doubts regarding the submission of the 2003 income affidavit in petitioner's favor.

However, AHO Lippa rejected as unpersuasive petitioner's evidence relating to her alleged tenancy in the Apartment between 2002 and 2004. She found the supposed implications of Eisen's voter registration records to be particularly troublesome:

[I]t is surprising to see that the applicant registered to vote using the subject apartment as her address on October 22, 2001, one year before she advised the housing company that she was impelled to move out of her apartment, and one year before her brother advised the housing company that his sister wanted to move in with him.

There is no claim or suggestion that the applicant resided in the subject apartment at any time prior to October 2002. The fact that she registered to vote at the subject apartment one year before claiming to have moved into the apartment suggests that she was attempting to create a paper trail to prove her residence in the subject apartment without regard to her actual residence.

Under the circumstances, I do not consider the fact that Ms. Eisen is registered to vote at the subject apartment to be reliable or credible proof of her actual residency there during the requisite time period. Furthermore, the fact that Ms. Eisen registered to vote at the subject apartment prior to the date that she claims to have moved into the apartment, raises questions regarding the reliability of all documentation submitted by the applicant to prove her actual primary residency in the subject apartment.

Decision at 5-6 (emphasis in original).

In light of this finding, AHO Lippa reviewed Eisen's remaining evidence regarding her residency with extreme skepticism. She dismissed petitioner's 2002 and 2003 state tax returns as unreliable because they were undated, unsigned, and not filed until February 2005, and concluded that the circumstances surrounding the state filings raised questions as to the authenticity of the dated (but uncertified) 2002 and 2003 federal returns. As to the various letters attesting to Eisen's tenancy, the hearing officer concluded that they "must be viewed in light of both the unreliable voter and tax return documents and the significant lack of any other documentation proving the applicant's primary residence in the subject apartment during the requisite co-residency period" (Decision at 7). In addition to finding some of the letters from Eisen's neighbors conclusory or insufficiently detailed, AHO Lippa noted that one of them misidentified the apartment number (5F instead of 4F) and that another gave Eisen's move-in year as 2000 instead of 2002.

The hearing officer also noted that the letters from organizations and companies did not purport to be based on any employee's independent verification of Eisen's address, but merely recited what her residence was "according to our records." Accordingly, AHO Lippa concluded [*4]that there was not "sufficient credible, reliable evidence" to support succession rights. This proceeding followed.

In challenging HPD's determination, petitioner argues that the hearing officer misinterpreted or disregarded the evidence relevant to petitioner's tenure in the Apartment. Specifically, petitioner contends that AHO Lippa misread the voter registration records, erroneously concluding that the October 2001 "registration date" identifies the date that the petitioner registered at the specific address reflected by the record, rather than the date that she first registered to vote in any electoral district. With respect to her tax returns, petitioner asserts that it was unfair of the agency to count the lateness of their filing against her because she was not required to file them at all (due to her low income) and did so only to satisfy HPD's demand. Finally, petitioner contends that HPD impermissibly discounted the many uncontradicted letters attesting to her residence at the address, giving excessive weight to minor errors in two of them and letting unfounded suspicions regarding the voting and tax records cloud its consideration of the rest.

Respondent HPD maintains that the determination was correct because petitioner did not provide copies of a motor vehicle registration, driver's license, or other publically filed documents (other than tax returns), or submit copies of documents mailed to her at the Apartment for the relevant period, even though the regulations do not require that petitioner produce such documentation. Moreover, respondent HPD's citation to the lack of such documentation is ironic given that it also maintains that petitioner registered to vote at the Apartment one year before she moved in, solely to establish a connection to the Apartment, and the cited documentation can similarly be generated solely to establish a connection to the Apartment. As to what is arguably the best proof of co-residency, letters from neighbors, respondent HPD maintains that the letters "were supplied by individuals who were friendly to petitioner and contained no specifics to indicate that petitioner actually resided at the subject apartment," and were "self-serving and unreliable given that petitioner had demonstrated a willingness to cite an incorrect address in the past, i.e. when registering to vote."

Discussion

Respondent HPD "is vested with exclusive jurisdiction to determine the remaining-family-member claim in city-aided Mitchell-Lama housing" (Lindsay Park Housing Corp. v Grant, 190 Misc 2d 777, 777 [2001]). To succeed to the leasehold rights of a Mitchell-Lama apartment, the petitioner bears the burden of 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]; see, Matter of Shupack v Dayton Towers Corp., 203 AD2d 134 [1994]). The submission of income affidavits identifying the petitioner as a resident does not, in and of itself, establish the existence of succession rights as a matter of law (Matter of Pietropolo, 39 AD3d 406, 406-407 [1st Dept 2007]). Rather, HPD may also rely upon "the lack of objective documentary evidence supporting petitioner's claim" to residency and "inconsistencies among the documents that were submitted" (Hochhauser v HPD, ___ NYS2d ___, 2008 WL 384323, *1 [1st Dept 2008]).

In particular, 28 RCNY §§ 3-02(n)(4)(i) and (ii) authorize HPD to consider evidence such as whether a conflicting address appears on the petitioner's tax returns, driver's licence, motor vehicle registration, voting record or other publicly filed documents. Furthermore, [*5]pursuant to section 3-02(n)(4)(iv), "no dwelling may be considered the primary residence of the tenant/cooperator unless the tenant/cooperator provides proof that he or she either filed a New York City Resident Income Tax Return at the claimed primary residence for the most recent preceding taxable year for which such return should have been filed or that the tenant/cooperator was not legally obliged to file such tax return."

In reviewing the determination of an agency such as HPD, the court must consider 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]; Windsor Place Corp. v DHCR, 161 AD2d 279 [1st Dept 1990]). An action is arbitrary and capricious, or an abuse of discretion, when the action is taken "without sound basis in reason and . . . without regard to the facts" (Matter of Pell v Board of Education, 34 NY2d 222, 231 [1974]). The court may not overrule the agency merely because it finds that the factual record could support a different conclusion (Matter of West Village Assocs. v DHCR, 277 AD2d 111, 112 [1st Dept 2000]).

The Petition is held in abeyance pending submissions on whether the registration date of 10/25/1991 on the New York City Board of Elections document represents the date on which the voter registered at the particular address listed on the record (the Apartment) or rather, the date on which the voter first registered to vote anywhere, including at another address. Such submissions are necessary because AHO Lippa found that petitioner was attempting to create a fraudulent "paper trail" by registering at the Apartment's address one year before she actually moved in, and this finding "raise[d] questions regarding the reliability of all documentation submitted by the applicant to prove her actual primary residency" (Decision at 6)(emphasis supplied). Further, in evaluating the weight to be given the letters from various organizations, Lippa noted that "[t]hrough her actions, the applicant has demonstrated her willingness to cite the subject apartment as her address, without regard to her actual residency there." (id.). Although issues of credibility are squarely in the province of the hearing officer (see, Swakeen v HHC, 39 AD3d 287 [1st Dept 2007]), this court cannot render a decision absent determining whether Lippa's decision was based on a misconception, which affected the balance of her reasoning. Notably, many of the various letters from petitioner's neighbors (including those living on the same floor) specifically indicated that the neighbors had visited petitioner's family on various occasions during the relevant period, and contrary to respondents' argument, contain specifics about petitioner's residency. To the extent that HPD chooses not to hold hearings in succession rights cases, which is the most desirable approach given that these cases often revolve around issues of credibility (that of those seeking succession rights and of their neighbors who attest to the residency), HPD cannot be heard to complain that letters attesting to residency do not contain every imaginable detail.

Accordingly, it is

ORDERED that the petition is held in abeyance pending submissions on whether the registration date of 10/25/1991 on the New York City Board of Elections document represents the date on which the voter registered at the particular address listed on the record (the Apartment) or rather, the date on which the voter first registered to vote anywhere, including at another address; and it is further [*6]

ORDERED that such submissions, which can be in the form of affidavits, documentary proof and/or memorandum of law, should be submitted to Chambers (Room 551) on or before April 28, 2008.

This Constitutes the Interim Amended Decision and Order of the Court.

Dated: April 7, 2008

ENTER:

_______________________

J.S.C.