The opinion
Kupferman, J. P., and Kassal, J., dissent in a memorandum by Kupferman, J. P., as follows:
I would affirm for the reasons stated by the Justice at Special Term. H This CPLR article 78 proceeding concerns the rights of mortgagees of certain Manhattan premises containing residential loft units to be heard on the question of the continuance of a certificate of occupancy which had been issued on the basis of inaccurate representations by the architects as to the qualifications of the premises for a certificate as of right. The alleged misrepresentations pertain to the actual lot size and whether the premises consists of two buildings or one. 11 The petitioners mortgagees contend that subdivision 5 of section 301 of the Multiple Dwelling Law affords them a vested right to the continuance of the certificate of occupancy inasmuch as they relied on the certificate in lending the money. They argue further that the revocation of the certificate ordered by the Commissioner of Buildings and confirmed by the Board of Standards and Appeals (BSA) reduces the value of their security by subjecting the premises to the provisions of article 7-C of the Multiple Dwelling Law, which includes rent regulation and subjection to the jurisdiction of the Loft Board. 11 Special Term dismissed the landlord’s petition but granted the petition of the mortgagees only to the extent of annulling the revocation and remanding the matter to the BSA for further hearings. The reason stated by Special Term for its order was that the mortgagees had not been given notice of the pendency of the proceedings before the BSA and an opportunity to participate therein. Special Term did not consider the merits of the mortgagees’ underlying claim but merely relied on due process grounds. 11 Under the circumstances, the value of the premises is clearly diminished by revocation of the certificate of occupancy. This is especially true in light of the alleged intention of the owner to convert the premises into cooperative ownership, which conversion would be greatly facilitated by the existence of a certificate of occupancy. U Thus, the BSÁ proceeding affected a significant property right of the mortgagees entitling them to notice and an opportunity to be heard. (See Sharrock v Dell Buick-Cadillac, 45 NY2d 152, 163 ; cf. Mennonite Bd. of Missions v Adams, 462 US 791 , _, 103 S Ct 2706, 2711 .) 11 No prejudice can result from Special Term’s order directing that further hearings be held.