The petitioner, Collette Hamilton, by order to show cause filed with this court on November 9, 2010, seeks a judgment pursuant to Article 78 of the Civil Practice Law and Rules {CPLR), setting aside the June 29, 2010 determination of the respondent, New York City Department of Housing Preservation and Development (HPD), by Administrative Hearing Officer Frances Lippa, that denied the petitioner succession rights under Article II of the Private Housing Finance Law (commonly known as the Mitchell-Lama Law) to the housing unit known as apartment A in the building located at 1173 Carroll Street in Brooklyn. The petitioner also moves, by a subsequent order to show cause, for leave to amend her petition to include a prayer for an injunction staying the underlying holdover action commenced by the respondent Crown Gardens Housing Corporation (the "Landlord"). The Court notes that the petitioner refers to the respondent Crown Gardens Housing Corporation as "the Co-op board for the subject premises [sic]" and the respondent Crown Heights Housing Corporation as the landlord. However, in its affirmation in opposition, Crown Gardens Housing Corporation refers to itself as the Landlord; the court will as well. The respondent, HPD moves to dismiss the instant petition: (1) pursuant to CPLR 3211 (a) (5), on the ground that the petition is time-barred; or, in the alternative, (2) that the disposition challenged by the petitioner is lawful in all respects.

Residential access to the subject apartment is governed, inter alia, by Article II of the Private Housing Finance Law, commonly known as the Mitchell-Lama Law. The last tenant of record of the subject housing unit is Bernice Hamilton—the petitioner's mother, [*2]who succumbed to a terminal illness on January 9, 2010. Ms. Hamilton asserts that she learned of her mother's illness in January of 2008; shortly thereafter, she moved into the subject unit to help care for her mother. The petitioner further asserts that she has since continuously resided in the subject apartment.

Ms. Hamilton avers that shortly after moving to the apartment, she informed members of the subject board of directors that she would be submitting the rental payments on behalf of her ill mother. She also avers that she asked the subject board members for assistance in allowing her to lawfully remain in the subject premises after the impending death of her mother; in other words, the petitioner claims she sought assistance with securing succession rights under the Mitchell-Lama Law and related rules. The petitioner states that the subject board members did not inform her how to secure her right of succession.

Ms. Hamilton asserted her right of succession to the tenancy shortly after her mother died. By letter dated April 5, 2010, counsel for the Landlord informed the petitioner that her claim for succession rights was rejected. The letter stated that the claim was rejected because only Bernice Hamilton was listed on the applicable income recertification documents for several years prior to her death, and the petitioner proffered no documents indicating that she was a co-occupant of the subject unit during the two-year period prior to decedent's death. The petitioner subsequently appealed this decision; the appeal resulted in the determination which Ms. Hamilton now seeks to annul.

The determination was based on several findings of the HPD hearing officer. First, the hearing he officer noted that Bernice Hamilton died on January 9, 2010. Citing 28 RCNY 3-02 (p), the hearing officer stated that in order to be entitled to succession rights, "an occupant must be included on the relevant income affidavits or income recertifications" filed during the applicable two-year period, which, in the instant matter, began on January 9, 2008 and ended on January 9, 2010. The hearing officer also noted that an income certification signed by decedent and dated May 29, 2009 indicated that decedent was the sole occupant of the subject unit. The hearing officer further noted that the petitioner did not submit any proof that she used the subject unit as her primary residence during the applicable period. The hearing officer concluded that. "[t]herefore, regardless of any family relationship to the tenant, Collette Hamilton is not entitled to succession rights to the subject apartment."

Thereafter, in September of 2010, counsel for the Landlord commenced a holdover proceeding in the Housing Part of the Civil Court of the City of New York. In response, the petitioner filed and served the instant orders to show cause. Ms. Hamilton seeks a judgment setting aside the denial of succession rights; she also seeks leave to amend her pleadings to add a plea for an injunction staying the underlying housing court action. In support of her application, she claims that although 28 RCNY 3-02 contains a presumption that co-tenants not listed in annual recertification are not entitled to succession rights, she has overcome that presumption by demonstrating that: (1) she resided in the apartment two years prior to the death of her mother, and resided in the apartment as a child; (2) she was her mother's caretaker for those final two years; her mother relied on her to pay all expenses; (3) she and her mother shared all finances; and (4) the petitioner communicated with social service agencies on behalf of her mother.

The petitioner further asserts that she is entitled to a stay of the housing court action. In support of that claim, Ms. Hamilton says that she possesses documents that will establish her right of succession; therefore, she has a likelihood of success on the merits. Also, the petitioner avers that she is willing to pay all rent, use and/or occupancy while the instant petition is pending; therefore, she reasons, there is no prejudice to defendants. However, if the stay is not granted, the petitioner faces eviction and termination of her succession rights. Thus, she affirms that consideration of both the danger of irreparable harm and the balance of equities should lead this court to favor her. The petitioner [*3]concludes that the instant application for leave to amend her petition to include a plea for an injunction staying the underlying housing court action should be granted.

In opposition to the instant petition, and in support of its motion to dismiss the petition, HPD first asserts that the instant petition is time-barred. Specifically, HPD argues that CPLR 217 (1) provides that the limitations period for a proceeding against a public body or officer is four months after the challenged determination becomes final. HPD claims that such a determination becomes final when the petitioner is aggrieved; in the instant matter, HPD argues that the petitioner became aggrieved when she received notice of the denied appeal. HPD asserts that, granting five days for mailing, means notice no later than July 5, 2010, giving her until November 5, 2010 to timely commence this proceeding; therefore, the instant petition, filed on November 9, 2010, is untimely. HPD concludes that the instant Article 78 proceeding (and the associated petition seeking leave to amend) should be dismissed on this ground.

Alternatively, HPD argues that there is no appropriate reason to disturb the subject determination. HPD claims that 20 RCNY 3-02 (p) (3) requires that qualified family members who seek succession rights to the tenancy of a deceased tenant must have been listed on income recertification forms for the last two years prior to decedent's death. Here, notes HPD, Ms. Hamilton's mother died in 2010; therefore, in order to be entitled to succession rights, Ms. Hamilton would have had to be listed as a co-tenant in decedent's 2008 and 2009 recertification forms. HPD notes that since the petitioner was not so listed, the applicable rules preclude granting succession rights right to her. HPD concludes that since the subject hearing officer based the subject determination on a reasonable and lawful review of the parties' submissions and the applicable rules, this court is not permitted to disturb the subject determination pursuant to Article 78.

In opposition to the two petitions, the Landlord also asserts that since the petitioner was not listed as an occupant of the subject unit in the two yearly income affidavits prior to the death of her mother, the petitioner is not entitled to succession rights. The Landlord also concludes that the instant proceeding should be dismissed. Additionally, the Landlord argues that since the applicable rules preclude succession rights in this instance, the petitioner does not demonstrate a likelihood of success in the underlying housing court action and is thus not entitled to an injunction staying that action. Lastly, the Landlord asserts that the balance of equities does not favor the petitioner; she has occupied the subject unit since February of 2010 but has not submitted rent payments since. For these reasons, the Landlord concludes that both petitions should be dismissed.

The Four Month Statute of Limitations

"A proceeding pursuant to CPLR article 78 must be commenced within four months after the determination to be reviewed becomes final and binding" (Matter of Jacobowitz v City of NY Dept. of Hous. Preserv. & Dev., 29 AD3d 583, 583 [2006], citing CPLR 217 and Matter of Carter v State of NY, Exec. Dept., Div. of Parole, 95 NY2d 267, 270 [2000]). Here, the statute of limitations period would normally have begun to run on July 5, 2010; that date is established by HPD allowing five days after the subject hearing officer mailed his denial of the petitioner's appeal. In establishing the July 5th date, HPD followed the time honored pattern and practice of agencies in New York City to give substance to the belief that one aggrieved by an adverse determination should actually receive the determination before the statute of limitations begins to run and acknowledges a realistic time for mail to reach an intended recipient. Thus, according to HPD, petitioner had until October 5, 2010 to timely commence a proceeding pursuant to Article 78 to challenge the subject determination. The Court notes that Monday, July 5, 2010 was celebrated as the Fourth of July - Independence Day holiday since the 4th fell on Sunday. This would mean that the five days after mailing would actually have been on the 6th of July, 2010. November 6, 2010 would have been the last day within the four month period except for the fact that it fell upon a Saturday. The four month statute of limitations would have run its course in this [*4]case on Monday November 8, 2010. Since the instant proceeding was commenced on November 9, 2010, the proceeding is properly dismissed on this ground alone and the associated petition for leave amend the petition to assert a claim for an order enjoining the underlying housing court action should likewise be denied.

The Article 78 Standard of Review

Administrative agencies such as HPD enjoy broad discretionary power when rendering determinations on matters they are empowered to decide (2 NY Jur 2d Administrative Law § 74).CPLR §7803 provides that: "[t]he only questions that may be raised in an Article78 proceeding are: 1. whether the body or officer failed to perform a duty enjoined upon it by law; or 2. whether the body or officer proceeded, is proceeding or is about to proceed without or in excess of jurisdiction; or 3. whether a 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, including abuse of discretion as to the measure or mode of penalty or discipline imposed;. . . ." Pursuant to CPLR Article 78, "the court's scope of review is limited to an assessment of whether there is a rational basis for the administrative determination without disturbing underlying factual determinations" (Heintz v Brown, 80 NY2d 998, 1001 [1992]). If a rational basis supporting a determination by an administrative agency exists, a court has no alternative but to confirm the challenged determination (Matter of Pell v Board of Education of Union Free School District No. 1, 34 NY2d 222, 231 [1974]).

Succession Rights to a Mitchell-Lama Unit

The Private Housing Finance or Mitchell-Lama Law "was enacted to encourage the development of low-and middle-income housing by offering State and municipal assistance to developers in the form of long-term, low-interest government mortgage loans and real estate tax exemptions" (Columbus 95th St., LLC v New York State Div. of Hous. & Community Renewal, 81 AD3d 269, 272 [2010]). The ultimate goal was to make sure that there would be affordable housing available to low and middle-income families. Rules were setup to insure that the benefits of such housing would be available fairly to any who qualified. Family members who either remain in or move into a Mitchell-Lama apartment to care for or help the tenant/cooperator or who remain in a tenant/cooperator's apartment into adulthood may have the right to take over the apartment after the tenant/cooperator vacates (one who dies while in the apartment will be considered to have vacated the apartment).The rules for entitlement to succession rights for such an apartment are set forth in the New York City Rules & Regulations. In pertinent part, the applicable rules state, inter alia: "if the tenant/cooperator has permanently vacated the apartment, any member of such tenant/cooperator's family, who has resided with the tenant/cooperator in the apartment as a primary residence, as determined by § 3-02 (n) (4) of these rules, for a period of not less than two years immediately prior to the tenant/cooperator's permanent vacating of the apartment, and has appeared on the income affidavits for at least the two consecutive annual reporting periods prior to the tenant/cooperator's permanent vacating of the apartment [emphasis added] . . . may request to be named as a tenant/cooperator on the lease and where applicable on the stock certificate." (28 RCNY 3-02 [p] [3]).

Prior to the subject challenged determination, Ms. Hamilton attempted to demonstrate that she used the subject unit as her primary residence for the two consecutive years immediately preceding decedent's death. Ms. Hamilton claims that she has submitted or can submit documents demonstrating the same. She asserts that the use of the subject unit as her primary residence for two years prior to her mother's death entitles her to succession rights. However, Ms. Hamilton misstates the applicable law and rules. As the Appellate Division of the Supreme Court stated in Matter of Miney v Donovan, (68 AD3d 876, 877 [2009]): "The regulations implementing the Mitchell-Lama Law which relate to succession rights were amended as of February 1, 2003 (28 RCNY 3-02 [p]). Prior to the amendment, if a family member did not appear on the income affidavits for the subject [*5]apartment for the two years prior to the tenant's vacatur of the apartment, a rebuttable presumption was created that the family member did not reside in the apartment during those two years. The amendment eliminated this rebuttable presumption, so that an occupant who does not appear on the relevant income affidavits may not receive succession rights to the apartment, and does not have the opportunity to present a rebuttal (id)."

Here, as in Matter of Miney, the petitioner is attempting to secure succession rights after the tenant of record died in January of 2010. Thus, as in Matter of Miney, in order to be eligible for succession rights, Ms. Hamilton was required to demonstrate that she was listed in income affidavits for two years prior to her mother's death (Id. at 877-878)—specifically, the income affidavits affirmed in 2008 and 2009. It is undisputed that Ms. Hamilton was not listed in those two income affidavits. Thus, the hearing officer correctly based her decision on the rule contained in 28 RCNY 3-02 (p); the determination thus had a rational basis and may not be set aside pursuant to Article 78 (see e.g. Matter of Hochhauser v City of NY Dept. of Hous. Preserv. & Dev., 48 AD3d 288 [2008]; Matter of Pietropolo v New York City Dept. of Hous. Preserv. & Dev., 39 AD3d 406 [2007]). "Since [petitioner] was not listed on the income affidavits for the two years preceding her mother's death, she is ineligible for succession rights. Thus, HPD's determination was not arbitrary and capricious," and the instant Article 78 proceeding must be dismissed (Matter of Miney, 68 AD3d 876). The second petition is, therefore, denied as moot.

In sum, for the above reasons, the motion of the respondent New York City Department of Housing Preservation and Development is granted and the instant proceeding is dismissed. Both petitions filed by the petitioner Collette Hamilton are denied.The foregoing constitutes the decision, order and judgment of the court.

E N T E R

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yvonne lewis, J.S.C.