Gonzales v Zinner

Gonzales v Zinner 2012 NY Slip Op 08070 Decided on November 27, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on November 27, 2012
Tom, J.P., Saxe, Richter, Abdus-Salaam, Feinman, JJ.
8626 101037/06 570261/07

[*1]Maria Gonzales, et al. Petitioners-Respondents,

v

Ihay Zinner, et al., Respondents, Department of Housing Preservation and Development, Respondent-Respondent, Esquire Group Estates, LLC, Respondent-Intervenor-Appellant.



Elisa Vazquez, et al., Petitioner,

v

Ihay Zinner, et al., Respndents, Vintage Ventures, LLC, Respondent-Intervenor-Appellant.




The Berkman Law Office, LLC, Brooklyn (Robert J. Tolchin of
counsel), for appellants.
Michael A. Cardozo, Corporation Counsel, New York (Susan
Paulson of counsel), for Department of Housing Preservation
and Development, respondent.

Order of the Appellate Term of the Supreme Court, First Department, entered on or about December 1, 2010, which affirmed an order of the Civil Court, New York County (David B. Cohen, J.), entered on or about September 30, 2009, granting respondent Department of Housing Preservation and Development's (HPD) motion to clarify a provision of an order and judgment (one paper), same court (Pam B. Jackman Brown, J.), entered on or about December 21, 2007, that HPD had the authority to issue loans to the Article 7A Administrator for repair of the subject buildings and to place liens against these properties in connection with the loans without prior court approval, unanimously affirmed, without costs.

Intervenors' interpretation of the court's appointment order, made pursuant to RPAPL 778(1), does not comport with our reading of the order. "[T]he starting point in any case of [*2]interpretation must always be the language itself, giving effect to the plain meaning thereof" (Majewski v Broadalbin—Perth Cent. School Dist., 91 NY2d 577, 583 [1998]). Here, the plain language of the court's order expressly empowers and authorizes the 7A Administrator to, among other things, obtain loans from HPD, and permits HPD to place liens on the subject buildings in connection with those loans, without prior court approval. By contrast, the order requires the 7A Administrator to obtain court approval prior to obtaining loans from any bank, lending institution or grant which would result in a lien on the premises.

Moreover, intervenors' challenge to the 7A Administrator's use of funds for repairs is unpersuasive inasmuch as they failed to dispute such charges within the 30-day period prescribed by statute despite having had the opportunity to do so from the date they purchased the subject buildings (see Administrative Code of City of NY § 27-2129; Wilson Realty, LLC v New York City Dept. of Hous. Preserv. & Dev., 25 Misc 3d 1221[A], 2009 NY Slip Op 52226[U] [Sup Ct, NY County 2009]).

Intervenors' claim that the court's order violated the due process clause is unpreserved, since it was not raised before the Civil Court (see DaSilva v C & E Ventures, Inc., 83 AD3d 551, 553 [1st Dept 2011]), and we decline to review it in the interest of justice. Were we to consider the claim, we would find it unavailing, since intervenors purchased the buildings subject to the 7A Administration, were permitted to intervene in the proceedings, and were afforded "an opportunity . . . to contest the overall legitimacy of the need for the proposed repairs and
renovations and the reasonableness of the amounts to be borrowed" (Chase Group Alliance LLC v City of N.Y. Dept of Fin., 620 F3d 146, 151 [2d Cir 2010]).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 27, 2012

CLERK