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

[*1] Matter of Gonzalez v New York State Div. of Hous. & Community Renewal 2008 NY Slip Op 52169(U) [21 Misc 3d 1124(A)] Decided on November 3, 2008 Supreme Court, Queens County Markey, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 3, 2008
Supreme Court, Queens County

In the Matter of the Application of Jorge Gonzalez, Petitioner,

against

New York State Division of Housing and Community Renewal, Defendant.



7061/2008



Appearances:

the Plaintiff, Jorge Gonzalez, pro se, 34-07 36th Ave., Apt. 2B, Long Island City, NY 11106

For the Defendant New York State Division of Housing and Community Renewal: Gary R. Connor, Esq., General Counsel, by Elizabeth Lacerenza, Esq., 25 Beaver Street, New York, NY 10004

For Proposed Intervenor PALD Enterprises, Inc.: Horing, Welikson & Rosen, P.C., by Daniel Roskoff, Esq., 11 Hillside Ave., Williston Park, NY 11596

Charles J. Markey, J.

In this Article 78 proceeding, petitioner pro se Jorge Gonzalez ("Gonzalez") seeks a judgment reversing the decision and order of the New York State Division of Housing and Community Renewal ("DHCR"), dated February 19, 2008, denying the petition for administrative review filed by "J. Gonzalez," upholding the Rent Administrator's order of August 17, 2007, and determining that the tenant was not overcharged in rent and that the owner must base all future rent on the lawful rent of $381.60 per month. PALD Enterprises Inc., the owner of the subject housing accommodation, cross-moves for leave to intervene in the within Article 78 proceeding.

Gonzalez separately moves for a stay of a Civil Court action pending the determination of the within Article 78 proceeding. Gonzalez also separately moves for an order granting a default judgment against the DHCR. Respondent DHCR cross-moves for an order excusing any default or defect arising from its service of the verified answer, answering affirmation, and accompanying papers, and seeks an extension of time in which to accommodate its service.

This Article 78 proceeding and related motions are consolidated for the purpose of a single decision, order, and judgment. Gonzalez commenced the within Article 78 proceeding by filing the notice of petition, verified petition, and exhibits on March 18, 2008, at which time his application to proceed as a poor person was granted. Gonzalez, in his affidavit of service states that he is not a party to the action, and that he served by mail the notice of petition and petition on March 18, 2008, on "The Attorney General, 120 Broadway, 24th Floor, New York, NY 10271," and on "Counsel's Office, Room 707, 25 Beaver Street, New York, NY 10004." The original return date for said Article 78 proceeding was April 2, 2008. The matter was adjourned to April 10, 2008, then to May 15, 2008, and, after oral argument, was marked "fully submitted" on July 10, 2008.

Gonzalez, in an order to show cause dated March 21, 2008, stated that he was about to commence the Article 78 proceeding, and sought a stay of a proceeding pending in Civil Court, under Index No. 81197/07, pending the determination of the Article 78 proceeding. The Court, in the order to show cause, directed Gonzalez to effect personal service of a conformed copy of the [*2]order, the petition, and any other supporting papers upon the DHCR, the Attorney General, and the Queens County Civil Court, on or before March 25, 2008. Gonzalez, in his affidavits of service, states that he is the party to the action, and that, on March 21, 2008, he served the "Order to Show Cause with T.R.O. in Special Proceeding Emergency Affidavit, Affidavit in Support, Affidavit in Support of Notification" by personally delivering the papers to: Left on the Desk of Margie Perez,' at 25 Beaver Street, New York 10004, Room 707; by personally delivering the papers to "Charles Larghi," at 120 Broadway New York 10271, and by personally delivering the papers to Barbara Oliveri, at the Civil Court, 89-17 Sutphin Blvd., Rm 404, Jamaica, New York.

The original return date of the order was April 3, 2008, adjourned to May 15, 2008, and the matter was fully submitted on July 10, 2008.

Gonzalez, in a separate motion for a default judgment, recites in an affidavit of service dated June 13, 2008, that he is not a party to the action, and that he mailed the notice of motion for a default judgment with affirmation in support on June 23, 2008, to Counsel's Office and to the Attorney General. A second page related to depositing the aforementioned papers with an overnight delivery service. It was notarized on "June 23" and is attached to the affidavit of service. On June 12, 2008, respondent DHCR served its answering papers to the amended Article 78 petition by leaving them at the door of the apartment designated in the amended petition, and by overnight mail.

An examination of the Article 78 proceeding and related motions makes clear that Gonzalez is the petitioner and, as such, is a party to the action. Gonzalez's personal attempt to serve the motion to stay the Civil Court action, as well as the motion for a default judgment, is invalid, as personal service by a party violates the provisions of CPLR 2103. Furthermore, such service is a jurisdictional defect, requiring the dismissal of these two motions (see, Matter of Wein v Thomas, 51 NY2d 862 [1980], aff'g 78 AD2d 611 [1980]; Sloan v Knapp, 10 AD3d 434, 434-435 [2004]; Hawkins v Szczesniak, 309 AD2d 1307 [2003]; Miller v Bank of New York, 226 AD2d 507 [1996]; Kedzielawa v Smolinski, 133 AD2d 517, lv denied 70 NY2d 604 [1987]). "The express provisions of CPLR 2103(a) may not be ignored or overlooked any more than may the provisions of other statutes defining the methodology of service" (Miller v Bank of NY [Del.], 226 AD2d 507, 508 [1996]).

As regards to the Article 78 proceeding, an examination of Gonzalez's affidavit of service reveals that he failed to serve properly the DHCR and the Attorney General. He was required, by CPLR 307 and 7804(c), to serve, by personal service, the DHCR and the Attorney General. Although CPLR 307 permits service upon a state agency by "mailing the summons by certified mail, return receipt requested, to such officer," personal service upon the state is also mandated (CPLR 307[2]; see CPLR 7804[c]). To complete such personal service, the notice of petition and other papers must be delivered to an Assistant Attorney General (see CPLR 307[1]; 403[b], [c]). Here, the affidavit of service reveals that Gonzalez, proceeding pro se, attempted to serve the notice of petition, petition, and supporting papers on the DHCR's counsel's office and the Attorney General by regular mail only. Such service was insufficient and defective (see CPLR 307[2]; see Matter of Finnan v Ryan, 50 AD3d 1306 [2008]; see also Matter of Rosenberg v New York State Bd. of Regents, 2 AD3d 1003, 1004, [2003]; Calco v State of New York, 165 AD2d 117, [1991], lv denied 78 NY2d 852, [1991]; Somlo v State Div. of Housing & Community Renewal, Office of Rent Admin., 142 AD2d 535, 536-537 [1988]).

Although the DHCR has not raised the defense of lack of personal jurisdiction, Gonzalez's [*3]failure to serve, by personal service, a copy of the notice of petition on the Attorney General's office, as required by CPLR 7804(c) and Section 2530.1 of the Rent Stabilization Code, requires dismissal of this proceeding (see generally, Rosenberg v NY State Bd. of Regents, 2 AD3d 1003, 1004 [2003]; Matter of Schanbarger v Blum, 90 AD2d 665 [1982], lv denied 58 NY2d 603 [1982]).

The Court further finds that even if Gonzalez were to overcome these defects, the petition lacks merit. Petitioner's mother, Josefina Gonzalez, filed a rent overcharge complaint on March 30, 2007, stating, in essence, that the rent in the renewal lease was not calculated properly and that the owner registered higher rents for the apartment, thus indicating that the tenant's rent was a preferential rent. Ms. Gonzalez also filed a lease violation complaint that raised similar issues and the two proceedings were consolidated. The Rent Administrator, in an order issued August 17, 2007, found that there was no overcharge and denied the tenant's overcharge complaint. The rent Administrator determined , concerning the lease violation, that the owner was required to base the future rent on the lawful rent of $381.60 a month. A petition for administrative review ("PAR") was filed by "J. Gonzalez" on November 6, 2007, in which the tenant asserted that the owner had not complied with the Rent Administrator's order and with a prior order issued in 1991. The DHCR denied the PAR, in an order issued February 5, 2008, stating that the proceeding before the agency concerned only the correctness of the Rent Administrator's order that was being appealed and that the administrative review proceeding is not the proper forum for addressing a complaint of non-compliance with said order. The DHCR also determined that, since the 1991 order pre-dated the period for which rent records could be examined for the purpose of determining the legal rent, petitioner's claim was moot. The tenant was advised to contact the DHCR's compliance bureau if she believed the owner had not complied with the rent administrator's order of August 17, 2007.

Gonzalez, in his original petition asserts that the "agency failed to see the fraud papers filed as Exhibit J by landlord when restoring the rent for apartment 2B. The landlord committed fraud by filing (submitting) [sic] another apartment in place of apartment 2B misleading DHCR and affected the Rent Administrator's or Commissioner's order Docket Number PD110060-OR. Order determining maximum rent/$1.00 fire damage Docket No. ML110103-S." Gonzalez seeks to "reverse the rent restoration order Docket No. PD-110060-OR retroactive to March 19,1999, Docket No. ML-110103-S, and to reverse Order No. VC 110169R, which is alleged to have resulted by fraud, and to enforce Order Number ZDA-11037-RV. Although Gonzalez filed an amended petition with the Court on April 23, 2008, it was not included in his moving papers and, therefore, cannot be considered here.

The DHCR asserts that Gonzalez lacks standing to commence the Article 78 proceeding. Although the PAR was filed by "J. Gonzalez," and the DHCR issued an order that refers to Josefina Gonzalez as the petitioner, the evidence in the administrative record establishes that some DHCR orders were previously issued to Jorge and Josefina Gonzalez, while others were more ambiguous as to the relationship between Jorge and Josefina Gonzalez. However, it does not appear that any determination was made as to Jorge's status as a tenant throughout the course of various administrative and court proceedings. Therefore, since Jorge Gonzalez is, undisputedly, an occupant of the apartment, he may be considered a party aggrieved by the PAR order (see Rent Stabilization Code § 2530.1).

Gonzalez also stated, at the oral argument of the present motions, before the undersigned, on July 10, 2008, that his father Hilario Gonzalez, now deceased, had signed the original lease, his [*4]mother never signed the lease, his family had to vacate the apartment due to a fire between November 25, 1998 and September 2001, during which time they paid a rent of $1.00 a month, and he and his father returned to the apartment on August 28, 2001. He claimed that the fire damage was not completely restored and that the DHCR should have referred back to an order issued in 1991 setting the rent at $83.91. He claims that the owner submitted evidence to the DHCR, regarding the repair of another, and not the subject, apartment and he discovered this fraud in 2001.

Limiting review of the DHCR's determination to the grounds invoked by the agency in making the determination (see, AVJ Realty Corp. v NY State Div. of Hous. & Cmty. Renewal, 8 AD3d 14, 16 [2004]; Matter of Missionary Sisters of Sacred Heart v New York State Div. of Hous. & Community Renewal, 283 AD2d 284, 288 [2001]), the Court finds that the agency had a rational basis for excluding the 1991 order from consideration (see Matter of Reads Dev. Co. v New York State Div. of Hous. & Community Renewal, 282 AD2d 273 [2001]) as the Administrative Code of the City of New York, § 26-516(a), 9 NYCRR § 2526.1(a)(2), and CPLR 213-a all prohibit examination of a housing accommodation's legal history prior to the four-year period preceding the filing of the rent overcharge complaint. Gonzalez may not avoid the consequences of the statute of limitations by couching the claim in terms of fraud (Muller v New York State Div. of Housing and Community Renewal, 263 AD2d 296 [2000]; Newgarden v Theoharidou, 247 AD2d 367 [1998]).

Finally, Gonzalez's attempt to challenge the January 18, 2002 order which restored the rent must be rejected, as these claims were not raised in the administrative proceeding and cannot be considered here for the first time (Muller v New York State Div. of Housing and Community Renewal, supra; Fanelli v New York City Conciliation and Appeals Board, 90 AD2d 756, aff'd 58 NY2d 952 [1983]).

In view of the foregoing, as Gonzalez has failed to establish that he properly served the DHCR and the Attorney General with the Article 78 petition and supporting papers, the Article 78 proceeding is dismissed. The Court further finds that, even if Gonzalez could overcome these defects, the petition lacks merit and would otherwise be dismissed. Since Gonzalez also failed to establish that he properly served the motion for a stay and the motion for a default judgment, these motions are denied. Respondent DHCR's cross motion is denied as moot, and the landlord's cross motion for leave to intervene is denied as moot.

________________________________Hon. Charles J. Markey

Justice, Supreme Court, Queens County

Dated: Long Island City, New York

November 3, 2008

Appearances:

the Plaintiff, Jorge Gonzalez, pro se, 34-07 36th Ave., Apt. 2B, Long Island City, NY 11106

For the Defendant New York State Division of Housing and Community Renewal: Gary R. Connor, Esq., General Counsel, by Elizabeth Lacerenza, Esq., 25 Beaver Street, New York, NY 10004

For Proposed Intervenor PALD Enterprises, Inc.: Horing, Welikson & Rosen, P.C., by Daniel Roskoff, Esq., 11 Hillside Ave., Williston Park, NY 11596