Matter of Boyd v New York State Div. of Hous. & Community Renewal

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Matter of Boyd v New York State Div. of Hous. & Community Renewal 2012 NY Slip Op 31260(U) May 11, 2012 Sup Ct, New York County Docket Number: 110437/11 Judge: Barbara Jaffe Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] SCANNED ON 511512012 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY -j Ea & BARBRKAJAFFE PRESENT: I C # - .w. %J. &tlce - Index Number 1 110437/201~1 BOYD, KELLEY S . INDEX NO. vs. - f PART I MOTION DATE HOUSING AND COMMUNITY RENEWAL SEQUENCE NUMBER : 002 ARTICLE 78 L 1Y crp ,* 'A MOTION SEQ. NO. - The following papers, numbered I to 7 Notice of Motlon/Ordor to Show Cause -Affldavlts - Exhlblta Anrwerlng Affldavlk I3 1 ,were h a d on thls motlon tonor vlLcRkc aAm\q\3kflhJLc k h h W h ~ I\ ~ h I No(*). I - Exhlblta lNo(r). a> , ? 3 r I NOW. Replylng Affldavitu Upon the foregoing paperg, It Is ordered that thls motlon I s UNFILED JUDGMENT This judgment has not been entered by the County Clerk and notice of entry cannat be served based hereon. To obtain entry, counsel or authorized representative must appear in person at the Judgment Clerks Desk (Room 1414. J.S.C. I. CHECK ONE: ..................................................................... 2. CHECK AS APPROPRIATE: 3. CHECK IF APPROPRIATE: .......,................,.,MOTION IS: ................................................ @CASE : J DISPOSED GRANTED d N i E D 0SETTLE ORDER 0DO NOT POST ' NON-FINAL DISPOSITION o m w m IN PART 0OTHER SUBMIT ORDER 0FIDUCIARY APPOINTMENT 0REFERENCE [* 2] Index No. For a Judgment pursuant to Article 78 of the Civil Practice Law and Rules, -against- For petitioner: Kelley S. Boyd, self-represented 240 Cabrini Boulevard, Apt. 4F New York, NY 10033 9 17-29 1-0004 Argued: Motion Seq. Nos. : Motion Cal. No. 110437/11 1/17/11 0 0, % DECISION & JUDGMENT For respondent DHCR Gary R. Connor, Esq. General Counsel 25 Beaver Street, 7h Floor New York, NY 10004 212-480-7439 For respondent 2321242 Realty: David I. Paul, Esq. Rappapart, Hertz, et al., P.C. 118-35 Queens Blvd., gthFloor Forest Hills, NY 11375 7 1 8-26 1-7700 By notice of petition dated September 13, 20 1 1, petitioner brings this Article 78 proceeding seeking an order vacating and reversing respondent New York State Division of Housing and Community Renewal's (DHCR) order and opinion denying her petition for 14 [* 3] administrative review. Respondents oppose. By order to show cause dated December 21,201 1, DHCR moves pursuant to CPLR 2304 for an order quashing the judicial subpoena duces tecum petitioner served on it. Petitioner opposes. By order to show cause dated January 3,2012, respondent 232/242 Realty Co. LLC, a/Wa Uptown Realty, moves pursuant to CPLR 2304 for an order quashing the judicial subpoena duces tecum petitioner served on it. Petitioner opposes. I. ARTICLE78 Judicial review of an administrative agency s decision is limited to whether the decision was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion, including abuse of discretion as to the measure or mode of penalty or discipline imposed. (CPLR 7803[3]). In reviewing an administrative agency s determination as to whether it is arbitrary and capricious, the test is whether the determination is without sound basis in reason and . . . without regard to the facts. (Mutter of Pel1 v Bd, of Educ. o Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 f NY2d 222,23 1 [ 19741; Mutter of Kenton Assocs., Ltd. v Div. of How. & Community Renewal, 225 AD2d 349 [lstDept 19961). Moreover, the determination of an administrative agency, acting pursuant to its authority and within the orbit of its expertise, is entitled to deference, and even if different conclusions could be reached as a result of conflicting evidence, a court may not substitute its judgment for that of the agency when the agency s determination is supported by the record. (Matter of Partnership 92 LP & Bldg. Mgt. Co., Inc. v State of N. Y. Div. of Hous. & Community Renewal, 46 AD3d 425,429 [lstDept 20071, ufld 11 NY3d 859 [2008]). 2 [* 4] As rent overcharge claims are subject to a four-year statute of limitations (Matter of Grimm v State of New York Div. of Hous. & Community Renewal, 15 NY3d 358, 364 [2010]), examination of an apartment s rental history beyond the four-year period is precluded (CPLR 213-a; New York City Administrative Code § 26-5 l6[a][2]). Where an overcharge complaint alleges fraud, however, the DHCR must examine the rental history beyond the four-year period to determine whether a fraudulent scheme to destabilize the apartment tainted the reliability of the rent on the base date. (Mutter ofGrimm, 15 NY3d at 366). Neither an increase in rent nor a mere allegation of fraud alone is sufficient to state claim of fraud. (Id.). Here, in concluding that there were insufficient indicia of fraud to warrant examination of the rental history for petitioner s apartment beyond the four-year limitations period, the Deputy Commissioner for DHCR s Department of Rent Administration rationally distinguished the building owner s behavior from that of the landlords in Grimm and Thornton v Baron, 5 NY3d 175 (2005). Whereas they engaged in fraudulent deregulation by, inter alia, requiring tenants to sign leases containing a provision that their apartments would not be their primary residences, increasing rent without providing rent stabilized lease riders, and threatening to raise rents if tenants failed to perform repairs at their own expense, the building owner here always registered the apartment as rent stabilized, even when the registered rent exceeded the $2,000 limit for rent stabilized apartments, and provided rent stabilized lease riders. (Affirmation of Jack Kuttner, Esq., in Opposition, dated Nov. 17,2011, Exh. A). Moreover, the Commissioner noted that, in contrast to the circumstances set forth in Grimm and Thornton, the rent increase at issue occurred after the building owner renovated the apartment for the first time in 32 years and that it would not be difficult for anyone with any experience in this industry to believe that it could have taken 3 [* 5] $39,000 to do so. (Affirmation of Jack Kuttner, Esq., in Opposition, dated Nov. 17,201 1, Exh. A). He also found that the variance in the registered rent reflected in the rent stabilized lease rider for the previous tenants resulted from a clerical error, not fraud, as it was apparent that the owner had completed the rider using an old version of the form. (Id.). Petitioner s assertions regarding the cost of the repairs provide no basis for disturbing the decision, as the Commissioner evaluated the building owner s proof in light of his experience and expertise in the field, and I may not substitute my judgment for his. Nor does the Commissioner s error as to petitioner s initial rent provide a basis, as it was immaterial to his final determination. Therefore, as the Commissioner made his decision on the basis of the record and the Rent Stabilization Law, it is neither arbitrary nor capricious. 1 . MOTION$ TO 0UASH 1 An application to quash a subpoena should be granted only where the futility of the process to uncover anything legitimate is inevitable or obvious or where the information sought is utterly irrelevant. (Anheuser-Busch, Inc. v Abrams, 71 NY2d 327, 332 [1988]). As judicial review of an administrative agency s determination is limited to the record before the agency (Matter o Featherstone v Franco, 95 NY2d 550, 554 [2000]; Matter of Yarbough v Franco,95 f NY2d 342, 347 [2000]), the information petitioner seeks is irrelevant to the instant proceeding. HI CONCLUSION Accordingly, it is hereby ORDERED and ADJUDGED, that the petition is denied in its entirety and the proceeding is dismissed; and it is fhther ORDERED and ADJUDGED, that respondent New York State Division of Housing and 4 [* 6] Community Renewal's motion for an order quashing the judicial subpoena duces tecum served on it is granted; and it is fwther ORDERED and ADJUDGED, that respondent 232/242 Realty Co. LLC aka Uptown Realty's motion for an order quashing the judicial subpoena duces tecum served on it is granted; and it is further ORDERED, that the stay of the proceeding 232/242 Realty Co. LLC v Kelley Boyd, L&T Index Number 91598/10 (New York City Civil Court, Housing Part) is vacated. DATED: J.S.C. May 11,2012 New York, New York UNFlLED JUDGMENT This judgment has not been entered by the County Clerk and notice of entry rdnnol be served based hereon. TO obtain entry, counsel or authoried representative must appear in person at t h e Judgment Clerk's Desk ( R m , 141B). I _ _ _ - 5

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