Deitch v. Dole

159 A.D.2d 311

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 13, 1990
• Status: Published

Opinion

Proceeding pursuant to CPLR article 78, transferred to this court by order of the Supreme Court, New York County (Clifford A. Scott, J.), entered on or about January 13, 1989, to review a determination of respondent New York City Loft Board dated September 17, 1987, which determined petitioner’s occupancy of the subject unit commenced after June 21, 1982, and therefore did not qualify him for protection under article 7-C of the Multiple Dwelling Law (Loft Law), unanimously dismissed and the determination confirmed, with costs.

Contrary to petitioner’s contention, there was substantial evidence in the record to support the finding of the Loft Board that he had relinquished occupancy of and vacated the subject fourth-floor front unit and commenced residency of a third-floor unit prior to the statutory cutoff date (CPLR 7803 [4]; Matter of Lahey v Kelly, 71 NY2d 135, 140). The substantial evidence standard requires only that there be enough relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate facts. (300 Gramatan Ave. Assocs. v State Div. of Human Rights, 45 NY2d 176.) The evidence at the hearing not only included testimony that petitioner had vacated the fourth-floor unit but also the sublease for the third-floor unit, proof of direct rental payments and testimony regarding petitioner’s intent to sublet a different third-floor unit after conclusion of the sublease. The fact that petitioner ultimately returned to the fourth-floor unit does not negate the finding that he had relinquished occupancy of said unit during the critical time period. In reviewing the administrative findings, this court may not weigh the evidence, choose between conflicting proof, substitute its assessment of the evidence or interfere with the Administrative Law Judge’s province to pass on the credibility of witnesses. (Matter of Stork Rest, v Boland, 282 NY 256.) Concur—Carro, J. P., Kassal, Ellerin, Wallach and Rubin, JJ.