Son’s Application for Succession to Mitchell-Lama Apartment Should Not Have Been Denied Because of Mother’s Failure to File Income Affidavit

In a full-fledged opinion by Judge Lippman, with three dissenters, the Court of Appeals determined that his mother’s failure to file an income affidavit did not warrant the denial of her son’s [Murphy’s] application for succession to the Mitchell-Lama apartment vacated by his parents:

In this case, DHCR [Division of Housing and Community Renewal] contests neither Murphy’s status as a family member, nor that he lived in the apartment during the relevant two-year period of 1998-1999.  The sole basis for DHCR’s denial of Murphy’s application was that his mother did not file the requisite income affidavit for 1998, the year prior to Murphy’s high school graduation.  Given the overwhelming evidence of primary residence, and the absence of any indication that the failure to file was related to Murphy’s status as a co-occupant or an income-earner,  we hold that it was arbitrary and capricious for DHCR to deny succession on the basis of the failure to file a single income affidavit.

There is no doubt that DHCR has a compelling interest in encouraging the timely filing of income affidavits in order to fairly and efficiently administer the Mitchell-Lama program. Housing companies and supervising agencies like DHCR rely on these affidavits to monitor both the number and aggregate income of occupants, information that is crucial to determining the appropriate amount of rent and to ensuring that tenants remain eligible for the rental subsidy.  Accordingly, failure to file income affidavits can result in harsh penalties: the tenant can be charged a surcharge on rent for the applicable year (as occurred here), or can be evicted (see 9 NYCRR §§ 1727-2.6 [a] and 1727-5.3 [a] [7]).

In the succession context, however, the principal purpose of the income affidavit is to provide proof of the applicant’s primary residence… . As both Supreme Court and the Appellate Division noted, Murphy provided ample evidence in support of his succession application evincing that he resided in the apartment during 1998 and 1999.  Indeed, DHCR does not dispute Murphy’s residency for the past 32 years.  DHCR instead cites only his mother’s technical non-compliance for a single year to justify evicting him from the only home he has ever known.

Notwithstanding the importance of the income affidavit requirement, given the overwhelming evidence of residency provided in this case, and the lack of relationship between the tenant-of-record’s failure to file and Murphy’s income or cooccupancy, DHCR’s decision to deny Murphy succession rights was arbitrary and capricious.  Matter of Murphy v NYS Division of Housing and Community Renewal, 146, CtApp 10-17-13