Tenant's Son Can't Get Mitchell-Lama Apartment

Upstate tenant’s son claimed pass-on rights to tenant’s Mitchell-Lama apartment after tenant died in 1995. Tenant had moved into the unit in 1992. The DHCR ruled against the son, finding that he wasn’t included as a new occupant by tenant or listed on tenant’s income affidavits while living in the unit. The son filed an Article 78 appeal to the court and won. The court found that the DHCR’s interpretation of Regulation 9 NYCRR 1727-8.3(a) was arbitrary and unreasonable.

The DHCR then appealed and won. When read with other regulations, the DHCR’s long-standing interpretation was reasonable. A person claiming succession rights to a Mitchell-Lama apartment must prove that (1) he’s a member of tenant’s family; (2) he lived with tenant as a primary residence for two years or, if elderly or disabled, one year; and (3) tenant listed the person on a notice of change to tenant’s family and/or on tenant’s income affidavit during the applicable one- or two-year period. The DHCR’s interpretation strikes a balance among various competing policies, including the interests of people on long waiting lists for housing and family members whose income was properly reported when they lived with tenants.

Meyers v. DHCR: NYLJ, 1/5/10, p. 28, col. 3 (App. Div. 3 Dept.; Cardona, PJ, Lahtinen, Kavanagh, McCarthy, Garry, JJ)