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Landlord-Tenant—Succession—Income Affidavit Is Not Conclusive Evidence

A trial court denied a petition to annul a determination by the NYC Dep’t of Housing Preservation and Development (HPD), which had denied the petitioner’s claim for succession rights to the subject apartment and dismissed the subject Art. 78 proceeding. The Appellate Division (court) affirmed.

The petitioner cited his inclusion on his father’s income affidavits which had been submitted to HPD. The court explained, however, that such income affidavits do not “establish his entitlement to succession rights as a matter of law….” HPD was “entitled to consider the lack of objective documentary evidence supporting petitioner’s claim… and the fact that petitioner provided an address other than the subject apartment as his place of residence on a tax return filed during the relevant time period.” The court further stated that “[t]he fact that the housing company changed its records and billings, accepted petitioner’s rent checks for several years, and entered into a transfer agreement is unavailing, as ‘estoppel cannot be invoked against a governmental agency to prevent it from discharging its statutory duties’….” HPD had never issued a lease, and the petitioner’s payment of rent “did not legitimatize his occupation of the apartment….”

Moreover, “the transfer agreement did not constitute an approval of his succession rights, and the agreement specifically stated that it was subject to HPD regulations.” The court also rejected the petitioner’s assertion that “HPD should have challenged the housing company’s transfer of his tenancy” pursuant to “28 RCNY 3-18, and not pursuant to 28 RCNY 3-02(p), since no written lease was involved.”

Comment: Adam Leitman Bailey, counsel to the landlord, stated that this decision illustrates that “income affidavits are not necessarily ‘decisive’ with respect to a succession claim.”

In re Jian Min Lei v. New York City Department of Housing Preservation and Development, App. Div., 1st Dept., Index No. 157409/15, decided Feb. 15, 2018. Sweeny, J.P., Manzanet-Daniels, Gische, Kahn, Oing, JJ. All concur.

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