The application was properly denied upon petitioner's admissions that she is not a member of the tenant of record's family, did not reside with the tenant of record in the apartment as her primary residence for at least two years, and was never listed on the tenant of record's annual income affidavits or a notice of change to tenant's family ( 9 NYCRR 1727-8. 3[a]; 1727-8.2[a][1]). To the extent that petitioner argues that such showings were not required since the right of succession she claims is not through the tenant of record, whose tenancy was "illusory ", but rather her deceased mother, who became the actual tenant by reason of an illegal sublet from the tenant of record, such argument was never raised in the administrative proceeding before DHCR, and therefore may not be considered in this article 78 proceeding (see, Matter of Muller v. DHCR, 263 A.D.2d 296, 307). In any event, it would not avail petitioner even if her claim of an illusory tenancy were deemed raised before DHCR. Assuming that the doctrine of illusory tenancy (see, Primrose Mgt. Co. v. Donahoe, 253 A.D.2d 404, 405) would otherwise apply here, it remains that petitioner was never listed on any income affidavits filed with the housing development, including those cosigned by her mother after petitioner allegedly moved in with her, nor on any notice of change to the tenant's family, at least one of which would be necessary to show that petitioner lived with her mother in the apartment as her primary residence for at least two years prior to her mother's death (9 NYCRR 17 27-8.2[a][5]; cf., Matter of Evans v. Franco, 93 N.Y.2d 823, 825). In view of the foregoing, a hearing could not have availed petitioner.
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.