Matter of R.E. Holding Co. LLC v State of New York Div. of Hous. & Community Renewal
Annotate this CaseDecided on August 9, 2006
Supreme Court, New York County
In the Matter of the Application of R.E. Holding Co., LLC, Petitioner, for a Judgment under Article 78 of the Civil Practice Law and Rules annulling the determination of the State of New York Division of Housing and Community Renewal,
against
The State of New York Division of Housing and Community Renewal, Respondent.
117647/05
Judith J. Gische, J.
Petitioner R.E. Holding Co., LLC ("landlord") is the landlord of a multifamily residential building located at 421 East 114th Street in Manhattan ("building"). It seeks to challenge the October 26, 2005 order and opinion of respondent, Division of Housing and Community Renewal ("DHCR") which denied the landlord's Petition for Administrative Review ("PAR") and upheld the order issued by the Rent Administrator ("RA") that the landlord is required to offer Leyda Ivette Peraza a renewal lease for apartment 1B at the building ("apartment"). By separate motion, Ms. Peraza seeks to intervene and to have her answer considered nunc pro tunc (motion sequence number 002). She also seeks dismissal of the underlying petition for failure to name her as a necessary party. The petition and the Peraza motion are consolidated for consideration and determination in this decision.
Landlord consents to Ms. Peraza's motion for intervention and to consider her answer as being filed nunc pro tunc. The DHCR has not interposed any opposition to the relief sought by Ms. Peraza. The motion is, therefore, granted to the extent that Leyda Ivette Peraza is an intervening party to this proceeding and her answer to the petition will be considered by the court. The collateral issue of dismissal based on failure to name a necessary party is otherwise denied.
Gloria Monroig was the lease tenant of the apartment for 29 years. She is the mother of Ms. Peraza. By letter dated February 6, 2005 Ms. Monroig notified the landlord that she had moved out of the apartment on February 2, 2005 and that she was requesting a renewal lease be sent in the name of her daughter, Ms. Peraza, pursuant to the succession laws applicable to rent stabilized apartments. By separate letter on [*2]the same date, Ms. Peraza requested a lease in her own name. Certain documentary information in support of the request was sent to the landlord at that time, including Ms. Peraza's birth certificate, a signed DHCR Form RA-23.5 notifying the Owner that there are family members residing in the apartment who may be entitled to succession rights, a Verizon bill in Ms. Peraza's name and New York State TAP awards dated 2000-2001 and 2001-2002. In addition, Ms. Peraza affirmatively stated to the landlord that the apartment has been her primary and only residence since she was born on January 2, 1980.
The landlord refused to provide a renewal lease in Ms. Peraza's name. On May 14, 2005 Ms. Peraza filed a complaint with the DHCR claiming that the landlord had failed to provide her with a renewal lease pursuant to the rights of succession under the Rent Stabilization Laws. In the complaint Ms. Peraza swore, under the penalties of perjury, that she had been living in the apartment for at least two years prior to the time her mother moved out. She also submitted all of the information and documentation that had previously been provided to the landlord.
Per the landlord's request, the DHCR asked Ms. Peraza to send additional information to the landlord, which included [1] consent to run a credit and housing report; [2] another birth certificate; [3] current government issued identification [4] copies of tax returns for the past three years, and [5] a voters registration card.
Ms. Peraza provided consent to run a housing report, but refused to provide consent to run a credit report. All other information was provided to the landlord and it all supported her contention that she was entitled to succeed to be the tenant of record for the apartment.
It is unclear whether the landlord ever took advantage of the consent to run a housing check on Ms. Peraza. Suffice it to say, however, that the landlord did not provide a scintilla of evidence tending to prove that Ms. Peraza was not entitled to succession rights. Ms. Peraza, on the other hand, not only submitted all of the above discussed documentation to the DHCR, but additional information as well, including a driver's license and banks statements.
Based upon the evidence submitted the RA determined that Ms. Peraza was entitled to a renewal lease for the apartment in her own name.
Petitioner's objections to the DHCR determination are not based upon proof that is contrary to Ms. Peraza's claim. It argues that Ms. Peraza did not adequately establish her claim, because there was no proof of the mother's current residence and no "background" checks done on either Ms. Monroig or Ms. Peraza.
For the reasons that follow the petition is denied.
In reviewing this order of the DHCR the only questions that may be considered by the court are whether a determination was made in violation of lawful procedure, was effected by an error of law or was arbitrary and capricious or an abuse of discretion. CPLR § 7803. Where the determination is rationally based upon the administrative record, it should not be disturbed. Matter of Salvati v. Eimicke, 77 NY2d 784 (1988); Elgart v. DHCR, 2 AD3d 218 (1st dept. 2003).
It is undisputed that the apartment at issue is subject to the laws and regulations of Rent Stabilization. It is also undisputed that the Rent Stabilization Law ("RSL") and Code ("RSC") provide that under certain circumstances certain family members residing [*3]in a housing accommodation with the tenant of record may acquire full rights of tenancy. It is also undisputed that a daughter is a within the categories of protected family members. It is further undisputed that if the family member resided with the tenant of record contemporaneously in the housing accommodation as a primary resident for the two year period immediately preceding the permanent vacature of the tenant of record, the remaining family member is entitled to a renewal lease in his or her own name. RSC § 2513.
The decision of the DHCR in this case was neither arbitrary nor capricious. The record before the administrative agency established that Ms. Peraza is the daughter of the tenant of record with whom she resided for not only for the two years preceding the Ms. Monroig's leaving the apartment, but for her entire life.
The landlord's primary argument is that there should have been "background" checks done to determine if Ms. Peraza was telling the truth. This argument fails. First of all the landlord was given consent to perform a housing investigation of Ms. Peraza. Thus, it could have conducted a background check if it wanted to. Its more generalized reference to the need for a "background" check is not required by law. Nor was it warranted by the particular facts of this case, where the landlord did not provide a scintilla of evidence challenging the credibility of the claims made by Ms. Peraza. The landlord had the right to do its own investigation, including checking the veracity of the facts asserted with its own building employees. It could have presented the RA with its own evidence in support of its own position. Having been given the opportunity to present information, it cannot attack the DHCR PAR determination upholding the RA determination that was based upon the only evidence submitted.
It was not irrational for the DHCR to conclude that it did not need any further information from Ms. Peraza in order to reach its conclusion. Nor was it irrational for the DHCR to conclude on the actual evidence submitted that Ms. Peraza was entitled to a renewal lease based upon the succession rights in the RSC and RSL. Lesser v. Park 65 Realty Corp., 140 AD2d 169 (1st dept. 1988).
Conclusion
In accordance herewith it is hereby:
ORDERED that the motion to intervene (sequence number 002) is granted to the extent that Leyda Ivette Peraza is permitted to intervene as a party respondent-tenant in this proceeding and that her answer will be deemed timely filed nunc pro tunc; and it is further
ORDERED that the petition is denied and that the Clerk is directed to enter a judgment in favor of respondent, the State of New York Division of Housing and Community Renewal and Respondent-Tenant Leyda Ivette Peraza, denying the petition; and it is further
ORDERED that any requested relief not otherwise granted herein is denied; and it is further
ORDERED that this shall constitute the decision and order of the Court.
Dated: New York, New YorkSo Ordered:
August 9, 2006 [*4] ___________________________
HON. JUDITH J. GISCHE, J.S.C.
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