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

Matter of Eisenberg v New York State Div. of Hous. & Community Renewal 2008 NY Slip Op 09828 [57 AD3d 312] December 16, 2008 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 11, 2009

In the Matter of Sidney Eisenberg, Appellant,
v
New York State Division of Housing and Community Renewal et al., Respondents.

—[*1] Thomas S. Fleishell & Associates, P.C., New York (Susan C. Stanley of counsel), for appellant.

Gary R. Connor, New York (Aida P. Reyes of counsel), for Division of Housing and Community Renewal, respondent.

Belkin Burden Wenig & Goldman, LLP, New York (Magda L. Cruz of counsel), for Columbus Limited Partnership and Rockrose Development Corp., respondents.

Order and judgment (one paper), Supreme Court, New York County (Paul G. Feinman, J.), entered July 5, 2007, denying the petition and dismissing the proceeding brought pursuant to CPLR article 78 to annul the determination of respondent New York State Division of Housing and Community Renewal (DHCR), dated July 3, 2006, which affirmed an order of the Rent Administrator deregulating petitioner's apartment based on his alleged default in answering the petition for high income rent deregulation, unanimously reversed, on the law, the facts and in the exercise of discretion, without costs, and the petition granted to the extent of remanding the matter to DHCR for further proceedings to consider additional evidence bearing on whether good cause exists to excuse petitioner's failure either to timely answer or to retain proof of the alleged timely mailing of his answer.

Given petitioner's failure to submit any objective proof that he had mailed his answer, it was neither arbitrary and capricious nor contrary to law for DHCR to find him in default (see Matter of Szaro v New York State Div. of Hous. & Community Renewal, 13 AD3d 93 [2004]). Nonetheless, in view of petitioner's advanced age and Housing Court's appointment of a guardian ad litem for him in the related holdover proceeding, the matter should be reopened at the administrative level for the reception of additional evidence bearing on whether good cause exists to excuse petitioner's failure either to timely answer or to retain proof of the alleged timely mailing of his answer (see Matter of Dworman v New York State Div. of Hous. & Community Renewal, 94 NY2d 359, 373 [1999]). We note that DHCR does not object to reopening the matter for this purpose. Concur—Mazzarelli, J.P., Friedman, Nardelli, Buckley and Freedman, JJ. [See 2007 NY Slip Op 31864(U).]