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Arroyo v. Donovan

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


February 18, 2010

IN RE JUAN ARROYO, ET AL., PETITIONERS,
v.
SHAUN DONOVAN, AS COMMISSIONER OF THE NEW YORK CITY DEPARTMENT OF HOUSING PRESERVATION AND DEVELOPMENT, ET AL., RESPONDENTS.

Determination of respondent Department of Housing Preservation and Development (HPD), dated April 24, 2008, which, after a hearing, granted respondent Woodstock Terrace Mutual Housing Corp.'s request for a certificate of eviction, unanimously confirmed, the petition denied, and the proceeding brought pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, New York County [Jane S. Solomon, J.], entered November 6, 2008) dismissed, and the stay of eviction vacated, without costs.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Andrias, J.P., Catterson, Renwick, DeGrasse, Manzanet-Daniels, JJ.

110750/08

HPD's determination that the subject apartment is not petitioners' primary residence is supported by substantial evidence, including the facts that they own a home in Florida and that petitioner Juan Arroyo's driver's license and car registration were issued by the State of Florida (see 28 RCNY 3-02[n][4]; Matter of O'Quinn v New York City Dept. of Hous. Preserv. & Dev., 284 AD2d 211 [2001]; Matter of Studley v New York City Dept. of Hous. Preserv. & Dev., 277 AD2d 101 [2000]). Petitioners submitted no documentation in support of their allegation that their grandchild, who is listed on the income affidavit as an occupant of the apartment, is home-schooled (see Regulations of the Commissioner of Education [8 NYCRR] § 100.10 detailing reporting requirements). Moreover, neither petitioners' and their witnesses' testimony nor the documentary evidence was sufficient to refute the finding that petitioners did not reside in the subject apartment for the required 183 days per year (28 RCNY 3-02[n][4][iv]).

Petitioners were provided with sufficient notice of the charges against them (see 28 RCNY 3-18[a][3]). They were not entitled to an opportunity to cure their nonprimary residence (see 28 RCNY 3-18[b]; Matter of O'Quinn, 284 AD2d at 212).

We have considered petitioners' remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20100218

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