Matter of Page v Donovan

[*1] Matter of Page v Donovan 2005 NY Slip Op 50819(U) Decided on May 2, 2005 Supreme Court, New York County Feinman, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 2, 2005
Supreme Court, New York County

In the Matter of Pamela Page and IGOR JOZSA, Petitioners,

against

Shaun Donovan, in his capacity as COMMISSIONER OF THE CITY OF NEW YORK DEPARTMENT OF HOUSING, THE CITY OF NEW YORK DEPARTMENT OF HOUSING PRESERVATION AND DEVELOPMENT and THE CITY OF NEW YORK, Respondents.



117321/2004

Paul G. Feinman, J.

This proceeding arises from petitioners' efforts, thus far unsuccessful, to obtain a certificate [*2]from the City of New York Department of Housing Preservation and Development ("HPD") that it did not harass tenants in the process of emptying its building, a former single-room occupancy multiple dwelling ("SRO"). Specifically, petitioners seek Article 78 mandamus relief declaring the determination by respondents unlawful, arbitrary and capricious, and compelling respondents to issue a determination granting petitioners' application for a certificate of no harassment. Respondents cross move to dismiss the petition on the grounds of lack of subject matter jurisdiction (CPLR 3211[a][2]) and failure to state a cause of action (CPLR 3211[a][7]). For the reasons stated below, the cross motion is granted and the petition is dismissed in its entirety.

Factual and Procedural Background

Petitioners are the owners of the premises located at 57 West 130th Street, New York, New York. The property, a SRO, has been vacant since the last occupant vacated in about January 2004 (Pet. ¶ 7). Petitioners desire to renovate and make improvements to the premises. To do so, they are required to obtain permits from the New York City Department of Buildings and, in accordance with New York City Administrative Code § 27-198, a "Certificate of No Harassment or Exemption" issued by the commissioner of Housing Preservation and Development (HPD). By application dated February 26, 2004, petitioners applied for the certificate (Pet. Ex. A). On September 7, 2004, HPD issued an "Initial Determination Upon Application" which denied, without hearing, the petitioners' application for a certificate (Pet. Ex. D).[FN1]

Petitioners commenced this Article 78 proceeding on December 9, 2004. Subsequently, on December 30, 2004, HPD withdrew the September 7, 2004 determination and issued a second "Initial Determination Upon Application" which stated that "there is reasonable cause to believe that harassment occurred at the premises during the inquiry period," and indicated that a hearing would be scheduled (Aff. in Opp. Ex. C). On January 11, 2005, HPD mailed a notice of hearing to take place on February 24, 2005, along with its petition detailing the allegations concerning harassment of tenants between February 27, 2001 and the present (Aff. in Opp. Ex. D). The hearing has been stayed, pending determination of this proceeding.

Legal Analysis

NYC Admin. Code § 27-198, which concerns alteration and demolition of SROs, requires building owners to submit their application to alter or demolish a premises to the commissioner of HPD along with an application for a certification of no harassment (NYC Admin. Code § 27-198[b][3]). After review, the commissioner issues either a certificate which states that "there has been no harassment of the lawful occupants of such multiple dwelling within the thirty-six month period prior to the date of submission of an application," or a waiver, or denies certification (NYC Admin. Code § 27-198[b][1][a-b], emphasis added).[FN2] A denial of certification results in the denial of a building owner's entire application for alterations or demolition for a 36-month period, commencing with the date of the denial of the certification, after which the owners may reapply (NYC Admin. Code § 27-198[b][5], [7]). [*3]

Section 27-2093 of the New York City Administrative Code concerns the certifications of no harassment. The statute requires a 30-day comment period after the application is made, after which the commissioner may (1) determine that no harassment occurred within the relevant 36-month time period, (2) grant a waiver, (3) deny certification without a hearing if there has been a finding by the office of rent control, the conciliation and appeals board or any court, that there had been harassment, unlawful eviction, or arson during the relevant time period or, (4) where there has been no prior determination of harassment, unlawful eviction, or arson, "provide that a hearing be held in the manner provided in section 27-2092 of this article if the commissioner has reasonable cause to believe that harassment has occurred within such stated period of time and that a waiver of certification may not be granted." (NYC Admin. Code § 27-2093[d][3]). If certification or waiver is denied, "notice of such denial accompanied by written findings indicating the grounds for such denial shall be mailed to the owner of record and shall be filed in the office of the city register." (NYC Admin. Code § 27-2093[d][4]).

Petitioners commenced their Article 78 procedure based on the fact that the September 7, 2004 determination denied certification without setting forth written findings pursuant to NYC Admin. Code § 27-2093(d)(4), nor did it allow for a hearing pursuant to NYC Admin. Code § 2093(d)(3). The petition claims that the HPD determination violated lawful procedure, was affected by errors of law, was arbitrary and capricious and an abuse of discretion. The first cause of action seeks to have the September 7, 2004 determination be annulled and vacated. The second cause of action seeks to have the court compel respondents to issue a certificate of no harassment. The third cause of action seeks restitution and/or incidental damages pursuant to CPLR 7806 based on the fact that petitioners remain unable to make repairs or renovations to their now-vacant building which is no longer generating any income (Ver. Pet. ¶¶31-32, 43).

The first cause of action has been rendered moot by HPD's December 30, 2004 withdrawal of its earlier determination and the substitution of a second determination directing a hearing based on reasonable cause to believe there had been harassment. Given that the December 30, 2004 determination includes the scheduling of an administrative hearing which has not taken place, there is no final determination which would make the proceeding ripe for judicial review (CPLR 7801[1]), notwithstanding petitioners' claim that the finding of reasonable cause is a non-appealable determination.[FN3] The court therefore lacks subject matter jurisdiction as to the first cause of action (see, Hearst v Clyne, 50 NY2d 707, 714 [1980] [mootness]). As to the third cause of action seeking mandamus to compel, while there need not be a final administrative determination in order for the court to entertain a petition seeking mandamus to compel (see Matter of Ista Mgmt. Co. v Division of Hous. & Comm. Renewal, 139 Misc 2d 1 [Sup. Ct., NY County 1988]), the petition must seek to command a ministerial action to which the petitioner has a "clear" legal right and for which there exists a duty which is "commanded to be performed by law and involving no exercise of discretion" (Matter of Hamptons Hosp. & Med. Ctr., Inc. v Moore, 52 NY2d 88, 96 [1981]; CPLR 7803[1]). Here, given that petitioners have not disproved the allegations set forth in the HPD petition concerning instances of alleged [*4]harassment of tenants, they have not yet established a clear right to a certificate of no harassment.

Finally, the second cause of action seeking restitution or incidental damages pursuant to CPLR 7806 is, at the very least, premature.

Petitioners argue that HPD's conduct is such that the proceeding falls within the established exceptions to the mootness doctrine. In Hearst Corp. v Clyne, 50 NY2d 707, the Court set forth the three factors common to matters that fall within the exception to the doctrine. They are, first, "a likelihood of repetition, either between the parties or among other members of the public," second, "a phenomenon typically evading review," and third, "a showing of significant or important questions not previously passed on, i.e., substantial and novel issues." (Hearst Corp. v Clyne, at 714-715). However, petitioners do not establish that this proceeding warrants an exception to the mootness doctrine. Their contention that HPD has improperly "stonewalled" the application process and that it would be likely to do so again or to continue to do so, has little merit. They offer no statistics or case law that suggests that the six-month wait between their application and the September 2004 denial of certification, or even the ten-month wait between their application and the determination directing a hearing, is inordinately lengthy. Notably, the statute does not set forth a time period within which HPD must review its findings before it renders a decision either granting or denying certification, or waiving it (see, § 27-2093[d][3). In actuality, petitioners were at the most set back by somewhat over three months, given that the first determination should have scheduled a hearing in October or November 2004, rather than in February 2005.[FN4] Indeed, as a protection to landlords, the statute requires the HPD commissioner to grant, deny, or waive certification within 45 days after the hearing (NYC Admin. Code § 27-2093[d][3][iv]).

Petitioners do not establish that what has occurred is a phenomenon which typically evades review or that it is "a significant or important question[ ] not previously passed on " (Hearst v Clyne). It is a fact that the September 7, 2004 determination failed to include written findings concerning the denial, however HPD rescinded its determination and issued a second determination finding "reasonable cause" and directing a hearing. Although petitioners contend that HPD refused to comply with a FOIL request (Aff, in Opp. ¶ 19), they do not proffer a copy of their request, and HPD's counsel states that based on her information and belief, the request has been complied with (Reply Aff. ¶ 17). It bears noting parenthetically that any challenge to the denial or delay of a FOIL request should be brought in a separate Article 78 proceeding. A delay in performance will not invalidate or terminate a proceeding "unless the statute says so in [*5]language or by an implication necessarily to be drawn from the statutory context" (Mott v Division of Housing & Community Renewal, 140 AD2d 7, 9 [2d Dept. 1988]; citing McKinney's Cons Laws of NY, Book 1, Statutes § 172). Petitioners' arguments fail to note that the only reason a hearing is directed is that there is reasonable cause to believe that harassment had occurred, and that if there was no such evidence, certification would have been granted.

Petitioners' contention that HPD is biased against them and will be unable to rule fairly, ignores the allegations contained in the HPD petition based on "information and belief" concerning several specific instances of conduct which, if true, could be found to be harassment (Not. of Cross-Mot. Ex. D, Not. of Hearing and Pet.). The court cannot agree that HPD is unnecessarily "subjecting" petitioners to the hearing process "and to further extensive, prejudicial delays" (Aff. in Opp. ¶¶ 11, 18), given the strong public interest in the purpose of the statute, which is to protect occupants of SRO buildings from harassment and unlawful activity by landlords. Thus, petitioners' suggestion that if there is a finding of harassment, the three-year penalty period should commence from the date of the September 2004 determination, rather than from the date of the determination after the hearing (Aff. in Opp. ¶ 4), cannot be granted, given the explicit statutory language setting forth the 36-month period as commencing with the date of the denial of the certification (NYC Admin. Code § 27-198[b][5], [7]). Accordingly, for the reasons stated herein, the petition is denied in its entirety, and the cross-motion to dismiss the petition is granted. It is

ORDERED and ADJUDGED that the cross motion to dismiss the petition is granted and the petition is dismissed in its entirety.

This constitutes the decision, order and judgment of the court.

E N T E R

Dated: May 2, 2005 ____________________________________

New York, New York J.S.C. Footnotes

Footnote 1:According to petitioners, HPD informed them that the determination is final, despite the fact that it is entitled "initial." (Ver. Pet. ¶ 14, n. 1).

Footnote 2:Thus, because petitioners' application was received on February 27, 2004, HPD must review the period for the three years prior to that date (Reply Aff. ¶ 11, n.1).

Footnote 3:HPD's finding of reasonable cause is supported by the allegations set forth in its January 11, 2005 petition (Not. of Cross-Mot. Ex. D) which, if true, would establish harassment of tenants within the three- year period directly preceding petitioners' application.

Footnote 4:According to HPD's counsel, the September 2004 denial was based on the contents of a Civil Court Consent Order dated February 28, 2001, a date which falls within the three-year period (Reply Aff. ¶ 11). Apparently HPD was unsure whether the consent order fell within the statutory parameters of "a finding by . . . any court, that there had been harassment, unlawful eviction, or arson during the relevant time period" (NYC Admin. Code § 27-2093[d][3]), and, "in the excess of caution," HPD withdrew its blanket denial in order to set the matter down for a hearing so as to allow petitioners to present evidence to rebut the allegations of harassment (Reply Aff. ¶ 11). The February 2005 hearing date was made at the convenience of petitioner Pamela Page who was unavailable earlier (Reply Aff. ¶ 16, n. 2).