Mitchell-Lama Tenant Seeking Apartment Transfer Must Meet Occupancy Requirements

(Decision submitted by David Hershey-Webb of the Manhattan law firm of Himmelstein, McConnell, Gribben, Donoghue & Joseph LLP, attorneys for the intervenor-tenants.)

Cooperative shareholder tenant in a Mitchell-Lama building sought to transfer with his partner to a different two-bedroom apartment within the building. Another couple in the building with a child also sought to transfer to the same two-bedroom apartment. HPD denied tenant’s application, finding that he didn’t meet the applicable occupancy requirements. HPD regulations provided that, in a Mitchell-Lama building, a two-bedroom apartment could be occupied only by a household consisting of at least three persons, or a brother and sister who were both adults, or a parent or guardian with at least one child. Tenant filed an Article 78 petition to appeal HPD’s decision and lost. The other building couple also joined in the case. The court ruled for tenant, but HPD and the other couple appealed and won. HPD had a rational basis for determining that the applicable regulation required tenant to comply with occupancy rules. Evidence of any prior lack of enforcement of the occupancy requirements regarding apartment transfers didn’t stop HPD from enforcing the rules. 

Wilson v. HPD: 2016 NY Slip Op 08533, 2016 WL 7380742 (App. Div. 2 Dept.; 12/21/16; Chambers, JP, Dickerson, Duffy, Connolly, JJ)