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In the Matter of DENNIS ELLIOTT, Petitioner, v. NEW YORK CITY LOFT BOARD, Respondent.

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 N.Y.2d 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 A.D.2d 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 N.Y.2d 298, affg 104 A.D.2d 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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MATTER OF ELLIOTT v. NEW YORK CITY LOFT BD
(Jun 30, 1994)