Elliott v. New York City Loft Board

Appellate Division of the Supreme Court of New York

Elliott v. New York City Loft Board

205 A.D.2d 460, 613 N.Y.S.2d 907

Appellate Division of the Supreme Court of the State of New York·Decided June 30, 1994·Published·Cited by 1 cases

Opinion

Determination of the respondent New York City Loft Board dated May 7, 1992, which found petitioner not to be a residential occupant entitled to statutory protection, is unanimously confirmed, the petition denied and the proceeding brought pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, New York County [Alice Schlesinger, J.], entered February 10, 1993) is dismissed without costs or disbursements.

The issue presented for consideration upon judicial review of a determination rendered by an administrative agency after a hearing "is limited to whether that determination is supported by substantial evidence upon the entire record” (Matter of Purdy v Kreisberg, 47 NY2d 354, 358). It is the role of the agency to assess credibility and weigh conflicting evidence, and this Court may not substitute its judgment, reevaluate the weight of the evidence, or choose between conflicting inferences (Matter of Kaye v New York City Loft Bd., 162 AD2d 208, 209). The administrative determination that petitioner failed to establish by credible evidence that he was the residential occupant in possession of the second floor unit prior to June 21, 1982 and thus was not a protected residential occupant of the unit under the Loft Law (29 RCNY 2-09 [b] [2]) was supported by substantial evidence in the record as a whole. Infrequent occasional use does not constitute residency for the purposes of Loft Law protection (see, Matter of Lower Manhattan Loft Tenants v New York City Loft Bd., 66 NY2d 298, affg 104 AD2d 223).

We have considered petitioner’s remaining arguments and find them to be without merit. Concur—Murphy, P. J., Wallach, Kupferman and Williams, JJ.

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Determination of the respondent New York City Loft Board dated May 7, 1992, which found petitioner not to be a residential occupant entitled to statutory protection, is unanimously confirmed, the petition denied and the proceeding brought pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, New York County [Alice Schlesinger, J.], entered February 10, 1993) is dismissed without costs or disbursements.

The issue presented for consideration upon judicial review of a determination rendered by an administrative agency after a hearing "is limited to whether that determination is supported by substantial evidence upon the entire record” (Matter of Purdy v Kreisberg, 47 NY2d 354, 358). It is the role of the agency to assess credibility and weigh conflicting evidence, and this Court may not substitute its judgment, reevaluate the weight of the evidence, or choose between conflicting inferences (Matter of Kaye v New York City Loft Bd., 162 AD2d 208, 209). The administrative determination that petitioner failed to establish by credible evidence that he was the residential occupant in possession of the second floor unit prior to June 21, 1982 and thus was not a protected residential occupant of the unit under the Loft Law (29 RCNY 2-09 [b] [2]) was supported by substantial evidence in the record as a whole. Infrequent occasional use does not constitute residency for the purposes of Loft Law protection (see, Matter of Lower Manhattan Loft Tenants v New York City Loft Bd., 66 NY2d 298, affg 104 AD2d 223).

We have considered petitioner’s remaining arguments and find them to be without merit. Concur—Murphy, P. J., Wallach, Kupferman and Williams, JJ.

Elliott v. New York City Loft Board, 205 A.D.2d 460, 613 N.Y.S.2d 907 (N.Y. Ct. App. 1994).

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Opinion

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