Jeong v Jiha
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Jeong v Jiha 2018 NY Slip Op 31157(U) May 16, 2018 Supreme Court, New York County Docket Number: 100807/2016 Judge: Debra A. James Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [* 1] ... ·SU REME COURT OF THE STATE OF NEWYOR~ NEW YORK COUNTY · . :!'AHC.S PRESENT: Justice MOTION DATE _ _ __ 0 / MOTION SEQ. NO. rs, numbered 1 t o _ , were read on this motion to/for _ _ _ _ _ _ _ ___,__ _ I No(1)•._ _ _ _ _ __ Notice of Motlo Order to Show Cau11- Affidavits - Exhibits The following p I No(1). - - - - . . . - - - Answering Affld vits- E x h i b i t s - - - - - - - - - - - - - - - - • No(1). _ _ _ __ Upon the foreg Ing papers, It Is ordered that this attached ••tl•R ii petition is granted in accordance with the emorandum Decision and Order. ·" \ I ' \' · ' oated: IfAY ·16 2018 - .....JrzT ~ -:: ;p_ . A'.<'S 0\ • '· · 1 .. t.JAMEf ~ ~ ... DEBRA~ #1- ~ I 0 NON.fl~ DISPOSmON TE: ...........................MOTION IS~GRANTED 0 DENIED 0 GRANTED IN P,\RT 0 OTHER . 0 SUBMJT ORJJER E: ................................................ 0 SETTLE ORDER 0 FIDUCIARY APPOINTMENT1 0 REFERENCE ODO NOT POST 1. CHECK ON~: ...;................................................................~CASE DISPOSED 2. CHECK AS APPROPRl 3. CHECK IF APPROPRIA .J.S.C. I i Supreme Court Records OnLine Library - page 1 of 9 [* 2] SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT HON. DEBRA A. JAMES PART _5_9_ Justice -------------- -----------------------------------------------------------------X In the Ma ter of the Application of JEONG, JI 100807/2016 INDEX NO. SUNG and MYUNG HEE JEONG, MOTION DATE Petitioners, MOTION SEQ. NO. -vJIHA, JAQ ES as Commissioner of the City of New York DEPARTM NT OF FINANCE and MID ISLAND LP. dba TURIAN MGMT., Respondents. DECISION AND ORDER ---------------r--·--·-··------····---··-······--·---··---········-···----·----·-·····-···-·A - - - -, were read on this application to Notice of Pe ition/ Petition/ - Affidavits - Exhibits No(s) VACATE 1, 2 No(s) 3,4 .............................................................................. - - - - - Replying ·r ·'.. .. ········································································cc··E··O ·~ ORDER \,\/\~ \ 1. 2.61~.\ f 5 n the foregoing documents, it•. is cLEf\~ .. ~:-. couNl'i' 1 e.W~ ~ - · ERED that the pet ion is GRANTtD; and it is further ERED that the February 1, 2016 revocation of the DRIE of petit er Myung Hee Jeong by the respondent Commissioner of the City of New York DEPARTMENT OF FINANCE is modified to the extent that th revocation is effective only as of that date and that the ret oactive recoupment portion of any such revocation is hereby acated; and it is further 100807/2016 JEONG, JIN SUNG vs. JIHA, JAQUES Supreme Court Records OnLine Library - page 2 of 9 Page 1of8 [* 3] I I I I O~DERED that respondent City Commissioner of the City of i New Yo~k DEPARTMENT OF FINANCE is hereby enjoined from seeking recoup ent of overclaimed ORIE tax abatements granted on behalf of pet'tioners from July 2014 to the February 1, 2016. DECISION P titioners, who are tenants in premises owned by corespon,ent landlord Mid-Island, 1. P. (Mid-Island), br s procee ing, seeking to reverse and annul the action of cont City of New York Department of Finance (the "City"). ers allege that the City seeks recoupment of amounts y erroneously paid to Mid-Island on their behalf of I under t e Disability Rent Increase Exemption Program (ORIE). The Cit opposes the relief sought. DR E and its related program SCRIE (Senior Citizen Rent Increas Exemption) provide an exemption against future rent I increas~s ! I r eligible disabled persons or senior c izens in I rent refulated apartments as of the date of eligibility. Real Prtperty Tax Law 467-b. See The exemption is accomplished by providitg the landlord with tax ts to make up the dif fere*ce between the frozen rent and what the tenants would be paying :ithout the program. Th receive Petition alleges that petitioner Jin Sung Jeong SCRIE benefits since March 2014 and continues to receive such bene ts through the date of this Petition. 100807/2016 JEONG, JIN SUNG vs. JIHA, JAQUES Supreme Court Records OnLine Library - page 3 of 9 Page 2 of 8 [* 4] O~ or about November 2013, petitioner Myung Hee Jeong was ! injure1 in a slip and fall accident and rendered bedridden. The Petiti9n asserts that in February 2014 she applied for ORIE benefi s at the behest of a social worker handling her case. The Petition asserts that that the petitioners husband and wife were u aware that a single household could not receive both SCRIE and DRIE bene ts simultaneously and that due to ers' limited language proficiency they merely followed ctions of the social worker, who visited their home with By Order dated June 19, 2014 of respondent City, I petitiorer's application for ORIE benefits was granted with the amount bf rent payable by petitioners to be frozen at $1,959.77. I The rent bills submitted by the Petitioners reflect that the respond~nt landlord subtracted first the SCRIE and then the DRIE credits[ as reported by respondent City from the amount of rent due in falculating the balance due from the petitioners-tenants. Aslstated by the respondent itself in answer to the . . I Pet1t10~ "Aiter issuing the ORIE order, DOF [Department of Finance] mi$takenly provided the Landlord Respondent with an ad itional monthly tax credit of $151.88 for twenty months epresenting the difference between the contract rent and th tenant's frozen rent - even though the Landlord Re pondent was ready receiving this monthly tax credit th ough the SCRIE order. In early 2016, OOF recognized th t it had been providing the Landlord Respondent with a do ble tax credit in conjunction with the SCRIE and ORIE 100807/2016 JEONG, JIN SUNG vs. JIHA, JAQUES Supreme Court Records OnLine Library - page 4 of 9 Page 3 of 8 [* 5] benefits. Subsequently, by notice dated February 1, 2016, OQF revoked the Petitioners' ORIE benefits retroactive to July 1, 2014 . . . . Accordingly, OOF sought to recoup $ ,875.46 in tax credits to the Landlord Respondent that it h d mistakenly provided conjunction with Ms. Jeong's O IE order." P titioner Myung Hee Jeong submitted an administrative i appeal lof the ORIE revocation in February 2016 and by· notice dated ~arch 1, 2016, respondent City denied the appeal because of the lrule that SCRIE and ORIE benefits cannot be simultareously received by the same household. Based upon respondent City's attempt to recoup the ORIE credits!, respondent landlord commenced a non-payment proceeding against\ petitioners in Queens Housing Court. This court upon the resfondent's Order to Show Cause commencing this proceeding stayed the non-payment proceeding. Petitioners assert without contrav ntion that except for the amount sought in recoupment all amornts due under their lease are current through the date of s filing. Pe itioners here challenge the respondent City's attempt recoup he ORIE credits as arbitrary and capricious because the ORIE ap lication and the ORIE Order issued by the respondent City failed to set forth that there was any prohibition on receivi g ORIE and SCRIE simultaneously and there is no evidence nor all gation that the petitioners or the landlord made any 100807/2016 JEONG, JIN SUNG vs. JIHA, JAQUES Supreme Court Records OnLine Library - page 5 of 9 Page 4 ofs [* 6] false r misleading statement or misrepresentation with respect ! to the IDRIE credits initially granted by the City. l R spondent City counters that the amount of rent to be paid by the petitioners was clearly set forth in the ORIE and SCRIE orders and that therefore the petitioners were not prejudiced by any ad itional credits issued to the landlord on their behalf to the extent they exceed those to which they were entitled. I Petitioners do not challenge the City's revocation of ORIE benefits in the February 1, 2016 Order to the extent that the Order revokes the issuance of any credits after that date. Rather t issue here is whether respondent's recoupment on the facts p esented here is a valid exercise. It has been held that where there is no valid SCRIE/DRIE Order i sued by the City, recoupment is an appropri e remedy becausel a landlord is not authorized to take a tax abatement unless valid Order has been issued and a landlord is required to take reasonable steps to determine whether a tenant has been certifi d as eligible for SCRIE/DRIE. ___ _ ___ Partner v Stupp, ____, __..__ -"-"- 48 W. 138th Ltd. 270 AD2d 132, 133 (lSt Dept 2000). Recoupm was also permitted in the case of Jadam Equities, Ltd. v p (182 Misc 2d 666, 668 [Sup Ct, NY County, 1999]) ----f---"--"- where e idence established that the deceased tenant had not submitt d any renewal/recertification applications from after 100807/2016 JEONG, JIN SUNG vs. JIHA, JAQUES Supreme Court Records OnLine Library - page 6 of 9 Page 5 of 8 [* 7] 1984 e~en though the landlord, aware of this fact, continued to I claim 1batements. i H wever, both 48 W. 138th Ltd. Partnership and Jadam Equiti s differ from the case at bar inso bar th as in the case at City did issue a ORIE exemption Order to petitioner Myung ee Jeong. Thus, at the time the City granted the respon ent-landlord Mid-Island an abatement on that basis. The I respon,ent City does not argue that the application was improp rly completed. Furthermore, while the City argues that it "mistakenly" provided the landlord with a ORIE tax credit, such a argument is incorrect because the C order nd followed it. y itself issued the Any mistake was not in the payment, but in the City's processing of the petitioner's initial applic Unlike the above c ed cases, the landlord here did notj retain any benefit from the credits but fully passed I them t rough to the tenants. B sed upon the facts presented here, where there is no allegation of intentional misconduct by the tenants or the landlo d in applying for or receiving the ORIE exemption; the I City i~sued a ORIE Order which the landlord and the tenants properljy obeyed; and there was no notice to either the tenants or landlord that the bene ts claimed were in anyway improper; it would be unfair and against the purpose of the program to allow the City to retroactively deny those benefits in a manner 100807/201 JEONG, JIN SUNG vs. JIHA, JAQUES Supreme Court Records OnLine Library - page 7 of 9 Page 6 of 8 [* 8] that wo~ld cause the tenants the very financial harm the ORIE I programl was created to avoid in the first place. The City is I the onlf party which had in needed s possession all the information o determine the validity of the order it issued and therefo e it is equitable to place the burden on the City of adminis ering the program by verifying its records in cases such as thes~. The City cannot claim to be surprised by such a ~ince result a Justice of this Court has previously rejected its argumen s to place the burden of recoupment in SCRIE/DRIE matters on innocent parties. Misc 2~ The Court in 948, 952 [Sup Ct, NY County 1995]) held that Thie agency here seeks to place the burden of the mistake that occurred between the landlord and the SCRIE agencies upon the senior tizen tenant, the innocent party who is in need of t e most protection. This court agrees with the opinion of t Hon. William McCooe in Dwyer v Department of Hous. P (index No. 41092/95), in which Judge M Cooe granted the CPLR article 7 8 petition of a senior citizen from whom HPD sought to recoup back increased rent a legedly owed when she became ineligible for SCRIE . " he tenant was blameless and any loss should be borne by the r sponsible party." I this case, the respondent City issued a ORIE Order based upon a application which was properly completed. fault part There was no y the petitioners nor landlord and any fault was on the 01 the City in administering the program. Any fault was I that o the City's and therefore " he tenant had the right to rely on the . . . conduct of HPD [in] granting [the] exemption for the d'sputed period. It would be inequitable to subject a 100807/201~ JEONG, JIN SUNG vs. JIHA, JAQUES Supreme Court Records OnLine Library - page 8 of 9 Page 7 of 8 [* 9] t nant to eviction for arrears when he was unaware it w s due and owing and did not have the opportunity to b dget his income to provide for the increased rent and n~w faces a judgment for the arrears. The tenant was b ameless and any loss should be borne by the responsible p rty." I the court shall grant the petition to vacate ent City's determination of February 1, 2016, only to the extent facating that portion of the determination which seeks to retroackively recoup ORIE credit amounts granted to the petitio~ers' Th~s landlord prior to that date. is the decision and order of the court. F\LED1 \ '\ MAY 17 2018. ..::N~W'~-BlAtJJ.Mrs, J.~ 5/1 /2018 TE CHECK ONE: CASE DISPOSED GRANTED § NON-FINAL DISPOSITION DENIED GRANTED IN PART APPLICATIO : SETTLE ORDER SUBMIT ORDER CHECK IF AP ROPRIATE: DO NOT POST FIDUCIARY APPOINTMENT 100807/2016 JEONG, JIN SUNG vs. JIHA, JAQUES Supreme Court Records OnLine Library - page 9 of 9 D OTHER D REFERENCE Page 8 of 8
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