In the Matter of Gladys Levin, as Executrix of Beatrice Schoen, Deceased, et al., Respondents, v. Department of Housing Preservation and Development of the City of New York, Appellant, and Whitman Owner Corp., Respondent

(June 8, 1989) In the Matter of Gladys Levin, as Executrix of Beatrice Schoen, Deceased, et al., Respondents, v Department of Housing Preservation and Development of the City of New York, Appellant, and Whitman Owner Corp., Respondent. [MAJORITY] Order and judgment (one paper), Supreme Court, New York County (David B. Saxe, J.), entered July 26, 1988, which granted the petition holding that the refusal of respondent HPD to approve petitioner Donna Levin as a tenant-stockholder of respondent Whitman Owner Corp. was arbitrary and capricious as a matter of law and directing Whitman to forthwith permit and facilitate the devolution of the stock and occupancy agreement referable to the apartment in question, unanimously modified, on the law, to the extent of remanding the matter to HPD for determination of whether Donna Levin’s annual income exceeds the maximum annual income level for admission to the Whitman project, and as so modified, otherwise affirmed, without costs. In holding that HPD’s refusal to approve Donna Levin as a tenant-stockholder of Whitman was arbitrary and capricious, the IAS court directed that, "unless there is some other reason for disapproving Donna Levin”, respondent Whitman was required forthwith to permit and facilitate the transfer of the stock and occupancy agreement referable to the subject apartment to her and to permit her to occupy the apartment. Implicit in the court’s decision is the finding that regardless of petitioner’s right to inherit the apartment from her grandmother, her occupancy of the apartment was contingent upon the satisfaction of the income limits required of all residents of subsidized housing projects. However, in the order and judgment which was subsequently settled, the direction to permit petitioner Donna Levin to occupy the apartment was unconditional. Accordingly, we modify to remand the matter to HPD for a determination of whether petitioner meets the applicable income requirements. Concur — Murphy, P. J., Kupferman, Carro, Kassal and Rubin, JJ. [See, 140 Mise 2d 110.]