Gubelmann v New York City Loft Bd.

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Gubelmann v New York City Loft Bd. 2020 NY Slip Op 34024(U) December 7, 2020 Supreme Court, New York County Docket Number: 151974/2019 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] INDEX NO. 151974/2019 NYSCEF DOC. NO. 98 RECEIVED NYSCEF: 12/08/2020 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. DEBRA A. JAMES PART IAS MOTION 59EFM Justice ---------------------------------------------------------------------------X JAMES GUBELMANN, INDEX NO. MOTION DATE Petitioner, 151974/2019 12/06/2019 MOTION SEQ. NO. _ _0-'-.01_0_0'-2__ For a Judgment under Article 78 of the Civil Practice Law and Rules, -v- DECISION + ORDER ON MOTION THE NEW YORK CITY LOFT BOARD, CYNTHIA LAM, and FRANK LAM, Respondents. ------------------------------------------------------------------------X The following e-filed documents, listed by NYSCEF document number (Motion 001) 2, 12, 13, 14, 15, 16, 37,38,39,40,41,42,43,44,45,46,47,46,49,50,51,52,53,54,55, 72, 73, 74, 75, 76, 77, 78, 79,88, 89,90,91,95 ARTICLE 76 (BODY OR OFFICER) were read on this motion to/for The following e-filed documents. listed by NYSCEF document number (Motion 002) 59, 60, 61, 62, 63, 64,65,66,67,68,69, 70, 71,80,83,64,85, 86,87,92,94 were read on this motion to/for DISCONTINUE ORDER Upon the foregoing documents, it is ADJUDGED that the motion of petitioner James Gubelmann to discontinue 3217 (b), this proceeding, without prejudice, pursuant to (Motion Sequence No. 902), is granted, and it is further ORDERED that the cross motion of respondents Cynthia and Frank Lams to dismiss the pet ion on its merits (Motion Sequence No. 001) is denied as moot. 15197412019 GUBELMANN, JAMES vs. NEW YORK CITY LOFT BOARD Motion No. 001 002 1 of 7 Page 1 of7 [* 2] INDEX NO. 151974/2019 NYSCEF DOC. NO. 98 RECEIVED NYSCEF: 12/08/2020 DECISION Petitioner James Gubelmann commenced this Article 78 special proceeding pursuant to CPLR 7803(3) and (4), challenging determination made by respondent, New York City Loft Board Board) . the (Loft Such determination denied his application, as well as his request for reconsideration, for coverage and protected occupant status pursuant to Article 7-C of the Multiple Dwelling Law, 280, et ~ §§ (the Loft Law) and regulations. In Motion Sequence Number 001, respondents Cynthia and Frank Lam (the Lams) cross-move for an order dismissing the petition, pursuant to CPLR 3211 {a) {2) (5) and (8), 7804 (f), and 217, on the grounds that (1) the court lacks subject matter and/or personal \. jurisdiction, (2) petitioner failed to exhaust his administrative remedies, and (3) the petition is time barred. In Motion Sequence Number 002, petitioner moves for an order, pursuant to 3217 (b), seeking leave to voluntarily discontinue this proceeding without prejudice. the motion (NYSCEF Doc. No. 81). The Loft Board does not oppose However, the Lams argue, among other things, that given their pending cross motion for dismissal 2 of 7 BOARD 151974/2019 GUBELMANN, JAMES vs. NEW YORK CITY LOFT Untinn Nn nn1 nn2 Page 2of7 [* 3] INDEX NO. 151974/2019 NYSCEF DOC. NO. 98 for lack RECEIVED NYSCEF: 12/08/2020 of limitations, jurisdiction they are and expiration entitled to of dismissal the on the statute of merits of petitioner's claim. I. Background Facts 442 Broadway, New York, New York, the third-floor unit Unit) in the building owned by respondents, the Lams, (the is the subject of this proceeding. Pet ioner, the tenant and occupant of the Unit applied to the Loft Board for coverage for the unit and protected status for himself, as tenant, under the Loft Law (NYSCEF Doc. No. 1, Petition). The New York City Office of Administration Trial and Hearings issued By Report and Recommendation dated April 19, 2016 that denied petitioner's application on the grounds that because Unit 48 of the property failed to satisfy the physical criteria for coverage, there were qualifying units. only two rather Specifically, than the requisite three Unit 48 did not have a window opening onto a street or lawful yard or court (NYSCEF Doc. No. 5, Loft Board Report and Recommendation) . 151974/2019 GUBELMANN, JAMES vs. NEW YORK CITY LOFT BOARD Motion No. 001 002 3 of 7 Petitioner argues that the Page 3 of 7 [* 4] INDEX NO. 151974/2019 NYSCEF DOC. NO. 98 RECEIVED NYSCEF: 12/08/2020 Loft Board erred in denying his application, among other reasons, as it founded its determination on the lack· of a window facing a street, lawful yard, or court in one of the three residential units, when the issue of a lack of a window facing a street, lawful yard or court of any of the Units had never been raised or any evidence elicited thereof. On May 18, 2017, the Loft Board issued a determination denying petitioner's application. On June 23, application for reconsideration. Board issued an reconsideration. order 2017, petitioner filed an _On November 15, 2018, denying petitioner's the Loft request for (NYSCEF Doc. No. 5, Loft Board Order No. 4819.) Petitioner further alleges that as of June 25, 2019, the New York State repealing, Legislature as amended prerequisite for the Loft coverage Law, in particular, under Art. 7-C of the Multiple Dwelling Law, that each of three residential units have a window onto a street, lawful yard or court and 70, (NYSCEF Doc. No. Bill Jacket Chapter 147 and Amended MDL 281, et 10 ~). Petitioner further argues that the amendments included a provision for retroactive applications of the 151974/2019 GUBELMANN, JAMES vs. NEW YORK CITY LOFT BOARD Motion No. 001 002 4 of 7 amendments to pending Page 4 of 7 [* 5] INDEX NO. 151974/2019 NYSCEF DOC. NO. 98 RECEIVED NYSCEF: 12/08/2020 applications coverage and provided, application would further, be a that basis no prior denial for denial of of a a new application. By way of the determination of his reconsideration application, petitioner asserts that he has exhausted his administrative remedies and commenced this special proceeding by filing the instant petition on February 22, 2019. II. Legal Analysis Petitioner moves for an order, pursuant to CPLR 3217 (b), permitting him to withdraw his petition without prejudice. CPLR 3217 (b) authorizes a court to grant a motion for voluntary discontinuance, upon terms and conditions as the court deems proper, where such is made more than 20 days after responsive pleadings are due. "While a determination upon such an application is generally within the sound discretion of the court, a party ordinarily cannot be compelled to litigate and, absent special circumstances, such as prejudice to adverse parties, a discontinuance should be granted." k of Am. N.A. v Douglas, 110 AD3d 452 [l 5 t Dept 2013]). 151974/2019 GUBELMANN, JAMES vs. NEW YORK CITY LOFT BOARD Motion No. 001 002 5 of 7 Page 5of7 [* 6] INDEX NO. 151974/2019 NYSCEF DOC. NO. 98 RECEIVED NYSCEF: 12/08/2020 Here, the Lams have not established prejudice and no special circumstances have been shown to warrant denial of petitioner's motion. Nor is there any Showing that petitioner sought the discontinuance only to avoid an adverse determination in this proceeding (Gonzalez v Kaye, 58 AD3d, 578 [1st Dept 2009]). The court disagrees with the Lams that this court has no discretion to dismiss this proceeding, where the issue of personal jurisdiction over the Lams is unresolved, as the petitioner's motion to discontinue constitutes a concession that this court lacks personal jurisd'iction over the Lams (see Headley v Noto, 45 Misc2d 284 [Supt Ct, Kings Co 1965], affd, 24 AD2d 493 [notice of discontinuance filed in face of a motion to dismiss for lack of personal jurisdiction constitutes a concession that the court lacked such jurisdiction]). Petitioner argues that the recent amendment to the Loft Law and his filing of two new coverage applications under such Loft Law amendment have rendered this proceeding moot. Unavailing is the Lams contention that the petitioner's refusal to consent to 151974/2019 GUBELMANN, JAMES vs. NEW YORK CITY LOFT BOARD Motion No. 001 002 6 of 7 Page 6 of 7 [* 7] INDEX NO. 151974/2019 NYSCEF DOC. NO. 98 RECEIVED NYSCEF: 12/08/2020 a decision on the merits of their cross motion to dismiss is prej~dicial, given petitioner's concession, with his motion to discontinue, that this court lacks jurisdiction over their persons. 12m2020 DERA~ JM; J.s.c> DATE CHECK ONE: CASE DISPOSED GRANTED D DENIED APPLICATION: SETTLE ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN ~ 151974/2019 GUBELMANN, JAMES vs. NEW YORK CITY LOFT BOARD Motion No. 001 002 7 of 7 NON·FINAL DISPOSITION GRANTED IN PART SUBMIT ORDER FIDUCIARY APPOINTMENT 0 OTHER D REFERENCE Page 7 of7

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