Fitterman v Seward Park Hous. Corp.

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Fitterman v Seward Park Hous. Corp. 2021 NY Slip Op 31777(U) May 26, 2021 Supreme Court, New York County Docket Number: 151381/2021 Judge: Carol R. Edmead 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. [*[FILED: 1] NEW YORK COUNTY CLERK 05/26/2021 10: 19 AM] NYSCEF DOC. NO. 31 INDEX NO. 151381/2021 RECEIVED NYSCEF: 05/26/2021 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: PART HON. CAROL R. EDMEAD IAS MOTION 35EFM Justice ----------------------------------------------------------------- ----------------X GARY FITTERMAN INDEX NO. MOTION DATE Plaintiff, 151381/2021 4/16/2021 MOTION SEQ. NO. 001 -vDECISION + ORDER ON MOTION SEWARD PARK HOUSING CORPORATION, Defendant. ------------------------------------------------------------------- --------------X The following e-filed documents, listed by NYSCEF document number (Motion 002) 6, 8, 9, 11, 12, 13, 14, 15, 16, 17, 18, 19,20,21,22,23,24,25,26,27,28,29 were read on this motion to/for ARTICLE 78 (BODY OR OFFICER) Upon the foregoing documents, it is ADJUDGED that the petition for relief, pursuant to CPLR Article 78, of petitioner Gary Fitterman (motion sequence number 001) is denied, and this proceeding is dismissed; and it is further ORDERED that counsel for respondent Seward Park Housing Corporation shall serve a copy of this order, along with notice of entry, on all parties within ten (10) days. 151381/2021 FITTERMAN, GARY vs. SEWARD PARK HOUSING Motion No. 001 1 of 4 Page 1 of4 [*[FILED: 2] NEW YORK COUNTY CLERK 05/26/2021 10: 19 AM] NYSCEF DOC. NO. 31 INDEX NO. 151381/2021 RECEIVED NYSCEF: 05/26/2021 In this Article 78 proceeding, petitioner Gary Fitterman (Fitterman) seeks a judgment to overturn a decision by respondent Seward Park Housing Corporation (Seward Park) as arbitrary and capricious (motion sequence number 001). For the following reasons, this petition is denied and this proceeding is dismissed. FACTS Seward Park is a co-operative corporation which owns a residential apartment building located at 385 Grand Street in the City, County and State of New York (the building). See verified petition, iJ 3. Fitterman is a shareholder of Seward Park who holds the proprietary lease to studio apartment L902 in the building. Id., iJ 8. This proceeding involves two applications that Fitterman submitted to Seward Park's board of directors (the board). On March 10, 2020, Fitterman entered into a contract to purchase one-bedroom apartment unit L 104 at the building from its shareholders, Kirsten Youngren and Christian Skelly, along with their corresponding 22.75 shares of Seward Park stock. See verified petition, iJ 11. Fitterman's purchase was subject to board approval. Id., iii! 12-14. At its May 6, 2020 scheduled meeting the board voted not to approve the purchase. Id., iJ 15; exhibit A. On July 3, 2020, Fitterman submitted a separate application to the board for permission to add his son, Joshua Fitterman, to both the stock certificate and the proprietary lease for unit L902. See verified petition, iJ 20. Fitterman alleges that the board reviewed the application, sought additional documents, and conducted an interview with himself and his son. Id., iii! 2123. Nevertheless, at its August 5, 2020 scheduled meeting, the board rejected Fitterman's application. Id., iJ 24; exhibit B. He states that he received a notice from the board dated August 13, 2020 which stated that it had "declined consent to the above referenced transfer." Id., 151381/2021 FITTERMAN, GARY vs. SEWARD PARK HOUSING Motion No. 001 2 of 4 iJ 26. Page 2 of 4 [*[FILED: 3] NEW YORK COUNTY CLERK 05/26/2021 10: 19 AM] NYSCEF DOC. NO. 31 INDEX NO. 151381/2021 RECEIVED NYSCEF: 05/26/2021 Fitterman states that he was advised by Seward Park's managing agent that he could appeal the board's denials of his two applications by submitting a written appeal request to the board's counsel. See verified petition, iii! 28-31. Fitterman also states that he submitted an "appeal letter" to the board's counsel on August 20, 2020, but that counsel never responded to it. Id.; exhibit C. As a result, Fitterman then commenced this Article 78 proceeding via order to show cause on February 16, 2021. See order to show cause. Seward Park filed an answer with affirmative defenses on March 29, 2021. See verified answer. This matter is now fully submitted (motion sequence number 001). DISCUSSION A trial court's usual role in an Article 78 proceeding is to determine whether, upon the facts before an administrative agency, a challenged agency determination had a rational basis in the record or was arbitrary and capricious. See Matter of Pell v Board ofEduc. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222 (1974); Matter ofE.G.A. Assoc. Inc. v New York State Div. ofHaus. & Community Renewal, 232 AD2d 302 (1st Dept 1996). Here, however, the court cannot perform the usual Article 78 analysis ofFitterman's petition. As the Appellate Division, First Department, held in Valyrakis v 346 W 48th St. Haus. Dev. Fund Corp. (161AD3d404 [!81 Dept 2018]): "A proceeding challenging an action taken by a cooperative corporation must be commenced within four months after the action is final. In circumstances where a party would expect to receive notification of a determination, but has not, the Statute of Limitations begins to run when the party knows, or should have known, that it was aggrieved by the determination." 161 AD3d at 405 (internal citations and quotation marks omitted). Here, it is clear that Fitterman did receive almost contemporaneous notice of both of the board's application denials. The 151381/2021 FITTERMAN, GARY vs. SEWARD PARK HOUSING Motion No. 001 3 of 4 Page 3 of 4 [*!FILED: 4] NEW YORK COUNTY CLERK 05/26/2021 10: 19 AMI NYSCEF DOC. NO. 31 INDEX NO. 151381/2021 RECEIVED NYSCEF: 05/26/2021 evidence shows that: 1) the board duly provided Fitterman and the building's other residents with copies of the minutes of its regularly scheduled May 6, 2020 and August 5, 2020 meetings pursuant to the building's by-laws; and 2) the board also provided Fittterman with a special notice dated August 13, 2020 that confirmed that it had "declined consent" to the second of his applications. See verified petition, exhibits A, B, C. Thus, the documentary evidence indicates that the statute oflimitations began to run on Fitterman's Article 78 claim on August 13, 2020, and that it would have expired four months later on December 13, 2020. Even were the court to afford Fitterman the benefit of the doubt, and to deem the statute of limitations to have commenced at some point shortly after his counsel sent the August 20, 2020 appeal letter, the limitations period would still have expired by the end of 2020, at the latest. Because Fitterman did not commence this Article 78 proceeding until February 16, 2021, it is clearly untimely in violation of CPLR 217 (1). Accordingly, the court finds that this Article 78 petition must be denied for that reason, and that this proceeding must be dismissed. DECISION ACCORDINGLY, for the foregoing reasons it is hereby ADJUDGED that the petition for relief, pursuant to CPLR Article 78, of petitioner Gary Fitterman (motion sequence number 001) is denied, and this proceeding is dismissed; and it is further ORDERED that counsel for respondent Seward Park Housing Corporation shall serve a copy of this order, along with notice of entry, on all parties within ten (10) days. 5/26/2021 DATE CHECK ONE: CAROL R. EDMEAD, J.S.C. CASE DISPOSED GRANTED 0 DENIED APPLICATION: SETTLE ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN 151381/2021 FITTERMAN, GARY vs. SEWARD PARK HOUSING Motion No. 001 4 of 4 ~ NON-FINAL DISPOSITION GRANTED IN PART SUBMIT ORDER FIDUCIARY APPOINTMENT D D OTHER REFERENCE Page4 of 4

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