Sopko v New York State Div. of Hous. & Community Renewal

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Sopko v New York State Div. of Hous. & Community Renewal 2013 NY Slip Op 32191(U) September 12, 2013 Supreme Court, New York County Docket Number: 101049/12 Judge: Michael D. Stallman Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] SCANNED ON 911812013 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PART 21 MICHAEL D. STALLMAN PRESENT: Hon. Justice ~ ~~ ~ BETH SOPKO, AMOS MIZRACHI, LINDA MIZRACHI, ELIZABETH RUF; SARAH MCFADDEN; LEONARD BANKS; CARMEN HERNANDEZ AND ACE BUHR, 101049/12 INDEX NO. 5/16/13 MOTION DATE Petitioners, MOTION SEQ. NO. -v- 001 THE NEW YORK STATE DIVISION OF HOUSING AND COMMUNITY RENEWAL and 299 B & C REALTY, LLC, 7 Respondents. Notice of Petition-Verified PetitionVerified Answer-Affirmation were read on this Article78 petition 9 The following papers, numbered 1 to 1 No(s). Amended Notice of Petition-Verified Petition- Exhibits A-G - Answer and Opposition Exhibit A; Amended Verified Answer-Amended Answering Affirmation-Exhibit A 3-4 I No(s). - Exhibit A 1-2 1 No@). Exhibits A-F 5-6 I Ws). 7; 8-9 Upon the foregoing papers, this Article 78 petition is decided in accordance with the annexed memorandum decision and judgment. and notice of entry cann , J.S.C. Dated: ................................................................ 2. Check ifappropriate: ............................ PETITION 1. Check one: 3. Check if appropriate: ................................................ . CASE DISPOSED DENIED I S 0 GRANTED 0NON-FINAL DISPOSITION c GRANTED IN PART ] @ OTHER a SETTLE ORDER 0SUBMIT ORDER 0DO NOT POST 0FIDUCIARY APPOINTMENT 0REFERENCE [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: IAS PART 21 -----------______-____________________ -X In the Matter of the Application of BETH SOPKO, AMOS MIZRACHI, LINDA MIZRACHI, ELIZABETH RUF, SAF?AH MACFADDEN, LEONARD BANKS, CARMEN HERNANDEZ and ACE BUHR, Petitioners, For a Judgment Pursuant to Article 78 -against- Index No. 101049/12 THE NEW YORK STATE DIVISION OF HOUSING AND COMMUNITY RENEWAL, DECISION AND JUDGMENT Respondent, -and299 B & C REALTY, LLC, Petitioners, rent stabilized tenants of the building located at 299 East 8th Street in Manhattan (Building), bring this Article 78 proceeding to annul that part of the December 2, 2011 order and opinion (Order) of the Deputy Commissioner of respondent New York State Division of Housing and Community Renewal affirmed the January 18, granting respondent 299 B (DHCR) which 2011 order of the Rent Administrator (RA) & C Realty, LLC's (Owner) application for a building-wide major capital improvement (MCI) rent increase for a new roof, pointing and waterproofing, and installation of a new boiler. The Order also affirmed the RA's order denying Owner's application for an MCI rent increase for repair or replacement of the cornice, and repair of the sidewalk and steps in front of the 1 [* 3] Building. Rent Stabilization Law § 26-511 (c) ( 6 ) (b) provides that, when a building owner establishes that it has made a building-wide MCI, the owner is entitled to pass the cost of such improvement on to the tenants of the building through a permanent building-wide rent increase. See a l s o Rent Stabilization Code (RSC) (2) (1). § 2522.4 (a) Petitioners argue that the Order is flawed in that the roof of the Building was not replaced, a new boiler was not installed, and pointing and waterproofing were either not performed at all, or performed inadequately. Petitioners' argument about the roof fails because petitioners assume that a roof needs to be replaced in order for funds expended on a roof to qualify for an MCI rent increase. verified petition, f See amended 24 and petitioner Elizabeth Ruf's letter opposing Owner's application. Return, A-8. However, RSC § 2522.4 (23) provides that either "complete replacement or roof cap on existing roof installed after thorough scraping and levelling as necessaryll qualifies as an MCI. The work proposal of Jabal Contracting Corp. was to repair and level the roof, create a pitch to prevent water from standing, and install a new rubber roof atop the repaired roof. not performed. Petitioners have not shown that this work was Indeed, one nonparty tenant in the Building, complaining that there was no new roof, stated that there was Ilonly [a] new top seal put on the existing roof." Return, A-8. Petitioners submitted, first to the RA and then with their petition for administrative review (PAR), copies of certain undated 2 [* 4] photographs of the roof to show that the roof remained in poor condition. conclusive The Order evidence states that the photographs that installations.lr Order, 3. the owner did not make "are not the MCI DHCR's evaluation of factual evidence is entitled to deference. M a t t e r o f 333 E . 49th Assoc., LP v N e w York S t a t e D i v . of Hous. & Community Renewal, Off. of R e n t A d m i n . , 40 AD3d 516, 516 (1st Dept) a f f d 9 NY3d 158 (2007); M a t t e r o f Wembly M g t . C o . v N e w York S t a t e Div. o f Hous. & Community Renewal , Off. o f R e n t A d m i n . , 205 AD2d 319 (1st Dept 1994). Petitioners also contend that such work as was done on the roof was defective inasmuch as, subsequently, there were leaks in several apartments. DHCR states, however, and petitioners do not dispute, that the apartments reported to have had leaks are not on the top floor, and that the leaks, therefore, are not attributable to defects in the roof. The contention of some of the petitioners, that the boiler was not replaced in 2006, rests entirely upon a notice of violation that was placed upon the boiler two years later. Inasmuch as that notice refers to the earlier installation as having been made without the necessary approvals, it is persuasive evidence that that installation was performed. Indeed, petitioners know full well that Owner installed a new boiler. See petition, exhibit C at 1. Moreover, petitioners know that the New York City Department of Buildings subsequently legalized the boiler. See petition, exhibit D at 1. The claim that Owner did not have the building pointed and 3 [* 5] waterproofed rests largely upon petitioners' assertion that no sidewalk bridge was erected at the relevant times. Petitioners presented no evidence that the pointing and waterproofing could not have been performed without the installation of a sidewalk bridge. Indeed, petitioners Carmen Hernandez and Leonard Banks expressly did not contest waterproofing. Owner's claimed See, expense for pointing respectively, Return, A-8 and and A-10. Moreover, petitioners failed to raise that argument to the RA, and, accordingly, they are barred from raising it here. Matter of Featherstone v Franco, 95 NY2d 550 (2000); Matter of 9 8 5 F i f t h Ave, v Div. of Hous. 6; Community Renewal, 171 AD2d 572 (1st Dept 1991). More generally, petitioners contend that no work could have been performed on the building, because there is no record of any governmental approvals for such work. That contention is refuted, in part, by a September 4, 2007 IICertificate of Approval for Oil Burning Installation'' from the New York City Department o f Buildings and, although it does not pertain to an approved expense, a sidewalk construction permit from the New York State Department of Transportation. To the extent that certain work may have been performed without a required permit, the remedy is not within the purview of DHCR. For purposes of this proceeding, it suffices to say, that it was hardly irrational for DHCR to grant, in part, Owner's application for an MCI rent increase, in view of evidence that proposals for performing work were submitted ta Owner, and that Owner paid for such work. 4 [* 6] Finally, petitioners contend that, because DHCR dismissed an earlier proceeding brought Owner, DHCR by should not have considered Owner's second application. For reasons best known to Owner, Owner filed two applications for an MCI rent increase with DHCR, covering the identical installations. Accordingly, DHCR dismissed one of the applications as duplicative of the other. Because that dismissal was not on the merits, DHCR was free to consider the remaining application. Accordingly, it is hereby ADJUDGED that the petition is denied, and the proceeding is dismissed. Dated: , 2013 New York, NY 5

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