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James v. Been

Supreme Court, Kings County

March 3, 2017

Adam James, Plaintiff(s),
v.
Vicki Been as Commissioner of the New York City Department of Housing Preservation & Development, and ST. JAMES TOWERS, Defendant.

          Attorney for Petitioner Michael T. Carr, Esq.

          Attorney for Respondent Vicki Been, As Commissioner of HPD Zachary W. Carter Corporation Counsel of the City of New York.

          Attorney for Respondent St. James Towers, Inc. Montgomery, McCracken, Walker & Rhoads, LLP.

          Katherine A. Levine, J.

         Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion:

         Papers Numbered

         Petitioner's Order to Show Cause with Accompanying Affidavits and Exhibits 1

         Respondent City's Verified Answer with Accompanying Affidavits and Exhibits 2

         Respondent St. James Towers, Inc.'s Verified Answer with Accompanying Affidavits and Exhibits 3

         Respondent HPD's Memorandum of Law 4

         Petitioner Adam James ("petitioner" or "James") seeks an order vacating the August 23, 2016 determination of the respondent New York City Department of Housing Preservation and Development ("respondent" or "HPD"), rendered by Vicki Been, as Commissioner of HPD, that petitioner did not have succession rights to Apartment 3C, 21 St. James Place, Brooklyn ("subject apartment"). Specifically, HPD ruled that petitioner did not sustain his burden of establishing through documentary evidence that he co-resided in the subject apartment with his grandmother Laura James, the record shareholder and lessee, for two years prior to her death. The subject apartment is located in the housing complex known as St. James Towers, Inc. ("SJT"), also a respondent herein, which is a state-supervised, limited-profit housing company organized under Article II of the Private Housing Financing Law, commonly known as the Mitchell-Lama Law. Petitioner further seeks an order staying SJT from commencing eviction proceedings and transferring the proprietary lease to anyone other than him.

         Petitioner claims that HPD's decision was arbitrary and capricious because in 2008 SJT approved him for succession rights to the subject apartment as the grandson of Laura James prior to her death in April 2006. In support of this claim, petitioner submitted to HPD a letter addressed "to whom it may concern, " dated March 6, 2008, from Orlando Torres of Wentworth Property Management, the alleged manager of the property. The letter states that petitioner resided in and "has been approved for a legal succession claim" on the subject apartment, was the "new stockholder of record, " and was "awaiting approval" from HPD for the "issuance of a new stock certificate." SJT generically denied the truth of this letter in its answer.

         Respondents HPD and SJT contend that the Court should deny James' petition to set aside HPD's decision because it was not arbitrary and capricious, as HPD correctly found that petitioner failed to prove that he resided with his grandmother in the subject apartment for the two years prior to her death pursuant to the requirements of 28 RCNY § 3-02(p).

         In reviewing HPD's determination, the Court must ascertain whether it was "arbitrary and capricious, " and made "without sound basis in reason or regard to the facts." Mtr. of Murphy v. New York State Div. of Hous. & Community Renewal, 21 N.Y.3d 649, 654-655 (2013) ; Mtr. of King-Rubie v Wambua, 141 A.D.3d 589, 589-590 (2nd Dept. 2016); Mtr. of Morton v. New York City Dept. of Hous. Preserv. & Dev., 93 A.D.3d 727 (2nd Dept. 2012). An agency's determination is deemed arbitrary and capricious if it has evaluated the facts using a standard that deviates from that which is expressly set forth in the statutes and regulations, as such a deviation betrays a lack of "sound basis in reason" for the determination. See, Mtr. of ACME Bus Corp. v Orange County, 28 N.Y.3d 913 (2016) (Award of city contract under General Municipal Law ยง 104-b is arbitrary and capricious if municipality evaluates a ...


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