Matter of Livermen v. Pascal

Matter of Livermen v Pascal

2024 NY Slip Op 33094(U)

September 4, 2024

Supreme Court, New York County

Docket Number: Index No. 451213/2023

Judge: Shahabuddeen Ally

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.

INDEX NO. 451213/2023

NYSCEF DOC. NO. 51 RECEIVED NYSCEF: 09/04/2024

SUPREME COURT OF THE STATE OF NEW YORK

NEW YORK COUNTY

PRESENT: HON. SHAHABUDDEEN ABID ALLY PART16TR

Justice

In the Matter of the Application of KYPRIS LIVERMEN, INDEX NO. 451213/2023

MOTION DATE 10/17/2023

Petitioner,

MOTION SEQ. NO. 003

For a Judgment Under Article 78 of the Civil Practice Law

and Rules

-against-

DECISION & ORDER

WOODY PASCAL, DEPUTY COMMISSIONER OF NEW

YORK STATE DIVISION OF HOUSING AND

COMMUNITY RENEWAL,

Respondent.

The following e-filed documents, listed by NYSCEF document number, were read

on this motion (Seq. No. 3) to/for CPLR ARTICLE 78 (BODY OR OFFICER):

1-14, 20-21, 38-43, 45, 47, 49-50

In this Article 78 proceeding, petitioner seeks judicial review of respondent's October 11,

2022 denial of petitioner's petition for administrative review ("PAR") of the determination of the

Rent Administrator of the New York State Division of Housing and Community Renewal

("DCHR") issued on May 25, 2022. In lieu of filing an answer to the petition, respondent cross-

moved on October 6, 2023, seeking remittal to DCHR for further consideration and review based

on respondent's concession that it misapplied the law. By Interim Decision and Order dated July

25, 2024, the Court denied the cross-motion, finding that misapplication of law did not constitute

grounds for remittal. The Court directed respondent to file an answer to the petition, which re-

spondent did on August 14, 2024. The Court now addresses petitioner's petition, and for the rea-

sons discussed below, grants it in part.

Petitioner is a tenant at 388 Bridge Street, Apt. 7C, Brooklyn, New York 11201 (the "Prem-

ises"), a rent-stabilized building. On March 16, 2021, petitioner filed a lease-violation complaint

with DCHR alleging that the owner of the Premises offered a renewal lease, dated January 11,

2021, that did not include petitioner's wife's name and failed to deduct the utility allowance of

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NYSCEF DOC. NO. 51 RECEIVED NYSCEF: 09/04/2024

$72.00 from the legal regulated rent ("LRR") of $622.00 per month. The owner of the Premises

submitted an answer to the complaint wherein a revised renewal lease was offered adding peti-

tioner's wife's name but still failing to deduct the utility allowance from the LRR. The DCHR Rent

Administrator subsequently granted petitioner's complaint. The October 11, 2022 PAR order

summarizes the Rent Administrator's order as follows:

[T]he RA issued an order granting the tenants' complaint and directing

the owner within 30 days to offer to the tenant a renewal lease for one or

two years at the tenant's option, based on the record which shows that a

prior order under Docket Number FW210043R [sic] established the LRR

of $634.44 per month and that said LRR must further be reduced by the

electric utility allowance of $84.00 in effect for 2021 and 2022. The RA also

directed the owner not to increase the rent until the first rent payment oc-

curring no less than 90 days after the date that a proper lease offer is made

to the tenants. Additionally, the RA directed the owner to amend the

yearly apartment registrations of 2019, 2020, 2021 and 2022 to reflect both

names of the tenants. Lastly, the RA directed the owner to issue a lease

renewal on the same terms and conditions as were contained in the Va-

cancy Lease (including all Riders).

(NYSCEF Doc. 3 at 1-2).

Petitioner thereafter filed a PAR seeking an array of amendments to the Rent Administra-

tor's order. Respondent denied the PAR, and petitioner subsequently commenced the instant Ar-

ticle 78 proceeding.

In this proceeding, petitioner asks that respondent's PAR denial be vacated and that he be

directed to grant the PAR. Specifically, petitioner argues that:

• Respondent erred legally when he determined that "the facts [of this matter] did

not support retroactivity to a prior guideline," thereby effectively determining that

the landlord could offer petitioner a renewal lease with rent set at a level not per-

mitted under the Rent Guidelines Board Rent Increase Order in place at the time

petitioner should have been offered a lease.

• That the landlord should be required to refund to petitioner any rent overpay-

ments made from January 1, 2020, to present, plus 9% interest. Respondent had

denied that request on the grounds that "[t]he directive to refund excess rent paid

is also not required in a lease violation order" and that, "[i]f, as the tenants suggest,

they have been overcharged since January 2020, they may file a new rent

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NYSCEF DOC. NO. 51 RECEIVED NYSCEF: 09/04/2024

overcharge complaint." (NYSCEF Doc. 3 at 3) In arguing that respondent's denial

of this portion of the PAR was improper, petitioner relies on 9 N.Y.C.C.R. § 2507.2,

which provides that "[t]he division may institute a proceeding on its own initiative

whenever the division deems it necessary or appropriate pursuant to the act or

this Chapter." Petitioner also alleges that DHCR had converted or merged the un-

derlying lease-violation proceeding into or with an overcharge complaint. Peti-

tioner submits as proof of this conversion/merger a Request of Additional Infor-

mation/Evidence from DCHR dated September 24, 2021. (NYSCEF Doc. 12)

• That the landlord should be required to "put the reason for their not receiving the

[LRR] on the rent stabilized annual apartment registrations [f]rom 2017-2022." Pe-

titioner argues that the reason for this request "is because we are under the Deep

Rent Skewed program[;] therefore[,] the landlord is only entitled to the collectible

rent. This is a material fact." Respondent denied this portion of the PAR on the

basis that "[t]he proposed directive to add the term Deep Rent Skewed Unit to the

registrations is outside the scope of this lease violation proceeding." (NYSCEF

Doc. 3 at 3)

• Respondent erred when he permitted to let stand that portion of the Rent Admin-

istrator's order allowing the landlord to increase the rent after "the first rent pay-

ment occurring no less than 90 days after the date that a proper lease offer is made

to the tenants." Respondent denied that portion of the PAR because "[t]he directive

that the owner may not increase the rent until the first rental payment occurring

90 days after the date of a proper lease offer is in accordance with language directly

from the Rent Stabilization Code and need not be removed." (NYSCEF Doc. 3 at

2) Petitioner argues that, "[d]ue to the nature of the Deep Rent Skewed program,

the collectible rents fluctuate and in this instance the rent is decreasing" and that

"[a]llowing the landlord to raise the rent 90 days after it as lawfully decrease is

harmful to us."

It is well settled that, in an Article 78 proceeding, a court reviews an agency decision to

determine whether it violates lawful procedures, is arbitrary or capricious, or is affected by an

error of law. CPLR § 7803(3); Kent v. Lefkowitz, 27 N.Y.3d 499, 505 (2016); W. 58th St. Coalition, Inc.

v. City of N. Y., 188 A.D.3d 1, 8 (1st Dep't 2020). Here, respondent concedes that its determination

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that "the facts [of this matter] did not support retroactivity to a prior guideline" was contrary to

9 N.Y.C.R.R. § 2523.5(c)(l), which provides, in relevant part, that when a landlord "fails to timely

offer a renewal lease ... the guidelines rate applicable shall be no greater than the rate in effect

on the commencement date of the lease for which a timely offer should have been made." There-

fore, the Court finds that, to this extent, and to this extent only, respondent's PAR order was

"affected by an error of law."

Petitioner, however, fails to demonstrate that any other portion of the PAR order was im-

proper. Petitioner's purported evidence that the underlying lease-violation proceeding was con-

verted into or merged with an overcharge proceeding does not clearly establish that fact. Nor

does petitioner's reliance on 9 N.Y.C.C.R. § 2507.2 support its argument, because that regulation

is, by its plain language, permissive. Finally, petitioner offers no viable legal basis for its argu-

ments against allowing the landlord to increase the rent 90 days after a proper lease offer or in

favor of requiring the landlord to amend the registrations to add the term "Deep Rent Skewed

Unit." Nor does petitioner demonstrate that those portions of the PAR order addressed to those

issues are arbitrary or capricious.

Accordingly, it is hereby:

ORDERED and ADJUDGED that the petition is GRANTED IN PART to the extent that

respondent's October 11, 2022 PAR order (Administrative Review Docket No. KR210019RT) is

VACATED only to the extent that it failed to properly apply 9 N.Y.C.R.R. § 2523.5(c)(l) and re-

quire the landlord to offer petitioner a lease with rent increases no higher than permitted under

Rent Guidelines Board Order Rent Increase Order #52 in effect on May 1, 2021, when petitioner

should have been offered a lease; and it is further

ORDERED that the matter is remitted to DHCR for further determination consistent with

this Decision and Order; and it is further

ORDERED and ADJUDGED that the petition is DENIED in all other respects, without

prejudice to petitioner filing an administrative rent overcharge complaint to DHCR; and it is fur-

ther

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ORDERED that, within 20 days from entry of this order, respondent shall serve a copy of

this order with notice of entry on petitioner and upon the Clerk of the General Clerk's Office (60

Centre Street, Room 119); and it is further

ORDERED that service upon the Clerk shall be made in accordance with the procedures

set forth in the Protocol on Courthouse and County Clerk Procedures for Electronically Filed

Cases (Revised August 15, 2019). 1

ORDERED that any requested relief not expressly granted herein is denied; and it is fur-

ther

ORDERED that the Clerk shall mark Motion Sequence 1 decided in all court records; and

it is further

ORDERED that the Clerk shall mark this proceeding disposed in all court records.

This constitutes the decision, order, and judgment of the Court.

September 4, 2024

DATE

CHECK ONE: CASE DISPOSED ~ NON-FINAL DISPOSITION

CROSS-MOTION (SEQ 3): □ DENIED OTHER

D

GRANTED X GRANTED IN PART

CHECK IF APPROPRIATE: SETTLE ORDER SUBMIT ORDER STAY CASE

INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE

1

The protocols are available at https://www.nycourts.gov/LegacyPDFS/courts/ljd/supctmanh/Efil-protocol.pdf.

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