Opposition Brief — 50 Murray Street Acquisition LLC, Petitioner v. John Kuzmich, et al.

No. 19-554

In the

Supreme Court of the United States

50 Murray Street Acquisition LLC,

Petitioner,

v.

John Kuzmich, et al.,

Respondents.

On Petition for a Writ of Certiorari to

the Court of A ppeals of New York

BRIEF IN OPPOSITION

Serge Joseph

Himmelstein, Mcconnell,

Gribben Donoghue

& Joseph LLP

15 Maiden Lane

New York, New York 10038

(212) 349-3000

Robert S. Smith

Counsel of Record

A nil Vassanji

Friedman K aplan Seiler

& A delman LLP

Seven Times Square

New York NY 10036-6516

(212) 833-1100

rsmith@fklaw.com

Counsel for Respondents

292809

A

(800) 274-3321 • (800) 359-6859

i

QUESTION PRESENTED

The federal question on which petitioner seeks this

Court’s review was neither presented to nor decided by

the New York Court of Appeals, which only decided a

question of state law interpretation, which this Court lacks

jurisdiction to review. Properly characterized, the petition

(“Petition”) presents the following question:

Does the “notwithstanding” clause of Section

421-g(6) of New York Real Property Law, which

says that rent regulation shall be applicable

to certain apartments “[n]otwithstanding the

provisions of any local law for the stabilization

of rents or the emergency tenant protection

act of nineteen seventy-four”, prevent the

deregulation of those apartments under the

high-rent decontrol provisions of that local law

and statute?

1

STATEMENT OF THE CASE

The Petition here concerns the New York Court of

Appeals’ interpretation of a New York statute governing

the stabilization of rents in New York City apartments

and the application of that statute to claims that do not

implicate federal law, i.e., whether Petitioner, a landlord,

was permitted to charge rents for its apartments that

are inconsistent with New York rent stabilization laws.

The New York Court of Appeals construed the New York

statute at issue—New York Real Property Tax Law

(“NY RPTL”) § 421-g—to mean that any landlord, like

Petitioner, that received tax benefits from the State under

NY RPTL § 421-g was required by the statute to subject

its apartments to New York’s rent stabilization laws.

W hile the Petitioner may disag ree w ith that

interpretation, the Petition should be denied because it

does not involve any “important question of federal law”

that is either unsettled or that conflicts with decisions of

this Court, federal Circuit Courts, or state courts of last

resort. Nor does the Petition implicate any other suggested

basis for granting the Petition, as contemplated by Rule

10 of the United States Supreme Court Rules. Perhaps

more important, no federal question was presented to or

considered by the New York Court of Appeals. This Court

does not have jurisdiction to overrule the New York Court

of Appeals’ interpretation of a New York statute.

REASONS FOR DENYING THE PETITION

Respondents do not believe that an extensive

opposition to the Petition is necessary, and they make

this short submission primarily to clarify a single point:

2

no federal question was raised below or addressed by the

New York Court of Appeals, and no federal question is

properly raised by the Petition.

The only issue raised by the Petitioner below and

decided by the New York Court of Appeals was one of

statutory construction: namely, the meaning of NY RPTL

§ 421-g, as that section was adopted pursuant to New

York’s Lower Manhattan Revitalization Project, Chapter

4 of the Laws of 1995. Petitioner’s question presented

below was limited to:

Does Real Property Tax Law §421-g preempt

any provision in the local law for the stabilization

of rents that is inconsistent with the regulation of

covered dwelling units’ rents, and in particular

the luxury deregulation provision of Rent

Stabilization §26-504.2, despite countervailing

indicia in the statutory scheme, including the

existence of enumerated exceptions to luxury

deregulation in §26-504.2 that do not include

§421-g, and despite the history of §421-g and

related statutes?

The Petition here and Petitioner’s motion for

reargument below both acknowledge that this was a matter

of interpreting New York’s statute. See, e.g., Petition 13

(“In July 2017, the trial court awarded summary judgment

to Respondents, determining that they were ‘entitled to

a declaration’ that the luxury-decontrol provisions [of

New York’s rent stabilization laws] do not apply to their

Section 421-g apartments.”); id at 13-14 (noting that the

intermediate appeals court, “criticized the trial court for

overlooking basic principles of statutory construction”);

3

Petition App. 56a (“Upon finding the statute unambiguous,

the [New York Court of Appeals] majority opinion

proceeded to reject any ‘attempt by defendants and the

dissent to a contextually use [sic] legislative history to

“muddy clear statutory language,” and concluded that

§ 421-g can be read only to subject properties to the proregulatory, but not deregulatory, provisions of the rent

stabilization laws.’”). Other than in its procedurally flawed

motion for reargument to the Court of Appeals (discussed

below), Petitioner did not argue—either to the New York

Court of Appeals or in any New York trial or intermediate

appellate court—that the interpretation and enforcement

of RPTL § 421-g would violate Petitioner’s constitutional

rights, or that application of the New York statute in this

case would be unconstitutional.

Because the only federal issue now advanced by

Petitioner was neither properly raised in nor addressed by

the court below, this Court lacks jurisdiction. This Court

may review state judgments only when “the validity of a

statute of any State is drawn in question on the ground

of its being repugnant to the Constitution” or “where

any title, right, privilege, or immunity is specially set

up or claimed under the Constitution.” 28 U.S.C. 1257.

No federal constitutional issues have been drawn into

question or specially set up by the New York Court of

Appeals decision because Petitioner did not present any.

When reviewing state-court judgments under Section

1257, this Court (with rare exceptions not applicable here)

will “not consider a petitioner’s federal claim unless it was

either addressed by, or properly presented to, the state

court that rendered the decision.” Adams v. Robertson,

520 U.S. 83, 86 (1997) (per curiam). This Court may not

disrupt the New York Court of Appeal’s interpretation of

4

a New York statute. See, e.g., Hortonville Joint Sch. Dist.

No. 1 v. Hortonville Educ. Ass’n, 426 U.S. 482, 488 (1976)

(“We are, of course, bound to accept the interpretation of

[State] law by the highest court of the State.”).

Petitioner argues that it properly raised a federal

question below when—after the New York Court of

Appeals had already issued its decision—Petitioner filed a

motion for reargument which raised, for the first time, the

argument that Petitioner seeks to make here. According

to Petitioner, this was the “first logical opportunity” to

raise this argument. Petition 37. This is incorrect. One,

Petitioner’s attempt to inject a federal question into this

dispute on a motion for reargument was procedurally

flawed under New York law, as Respondents made clear

in their opposition to the motion for reargument below.

See App. 11a-12a (“[A] motion for reargument must be

limited to fact or law overlooked in respect of arguments

previously made. It is well-established that ‘reargument

is not available where the movant seeks only to argue

“a new theory of liability not previously advanced.”’”)

(citing New York state law cases). Two, the decision by

the New York Court of Appeals—which Petitioner now

claims constitutes a “taking”—was substantively identical

to a decision of the New York trial court in 2017, which

awarded summary judgment to Respondents regarding

the meaning and applicability of RPTL § 421-g. See

Petition 13. On appeal of that decision, however, Petitioner

did not make any constitutional “takings” argument, nor

did it preserve that argument (or any other argument

implicating a federal question) for appeal.

Petitioner also argues that, notwithstanding its

failure to raise a federal question below, the New York

5

Court of Appeals’ interpretation of a New York state

statute can constitute a judicial taking under Save the

Beach Renourishment, Inc. v. Florida Department

of Environmental Protection, 560 U.S. 702 (2010).

Respondents addressed Petitioner’s Save the Beach

argument in their Opposition to Petition’s Motion for

Reargument to the New York Court of Appeals, and

Respondents’ briefing on that point is included in the

appendix and Respondents incorporate it here. See App.

13a (“The majority’s Opinion here did not ‘take away’ or

‘deprive’ 50 Murray of any right. Rather, it corrected 50

Murray’s misinterpretation of RPTL § 421-g and clarified

that 50 Murray never had a right in the first place to

luxury rent decontrol apartments in a building receiving

an RPTL § 421-g tax abatement.”) (emphasis in original).

CONCLUSION

Respondents respectfully request that this Court

deny the Petition.

Respectfully submitted,

Serge Joseph

Himmelstein, Mcconnell,

Gribben Donoghue

& Joseph LLP

15 Maiden Lane

New York, New York 10038

(212) 349-3000

Robert S. Smith

Counsel of Record

A nil Vassanji

Friedman K aplan Seiler

& A delman LLP

Seven Times Square

New York NY 10036-6516

(212) 833-1100

rsmith@fklaw.com

Counsel for Respondents

APPENDIX

1a

Appendix TO MOTION FOR

Appendix — OPPOSITION

REARGUMENT of the COURT OF APPEALS

OF THE STATE OF NEW YORK, DATED

AUGUST 12, 2019

COURT OF APPEALS OF THE

STATE OF NEW YORK

New York County Clerk’s Index No. 155266/16

Appellate Division–Second Department

Docket No. 00078/18

JOHN KUZMICH, SANDRA MAY, JOSHUA

SOCOLOW, IGNATIUS NAVASCUES, KENDTRICK

CROASMUN, RISHI KHANNA, CAITLAN

SENSKE, JAMIE AXFORD, JONATHAN GAZDAK,

Suzy HEIMAN, MICHAEL GORZYNSKI, NIKESH

DESAI, HEIDI BURKHART, BEN DRYLIEPERKINS, KEIRON McCAMMON, LISA ATWAN,

JENNIFER SENSKE RYAN, BRAD LANGSTON,

ALEJANDRA GARCIA, LISA CHU, SCOTT REALE,

DAN SLIVJANOVSKI, SHIVA PEJMAN, LAURIE

KARR, ADAM SEIFER, ANAND SUBRAMANIAN,

DARCY JENSEN, ELIN THOMASIAN, HAZEL

LYONS, DAVID DRUCKER, HOWARD PULCHIN,

JIN SUP LEE, JENN WOOD, NICHOLAS

APOSTOLATOS, ALEX KELLEHER, BRIAN

KNAPP, JEFF RIVES, JASON LEWIS, LAURA

FIESELER HICKMAN, FRANKLIN YAP and

STEVEN GREENES,

Plaintiffs-Appellants,

2a

Appendix

– against –

50 MURRAY STREET ACQUISITION LLC,

Defendant-Respondent.

OPPOSITION TO MOTION FOR REARGUMENT

[TABLES INTENTIONALLY OMITTED]

PRELIMINARY STATEMENT

In this appeal, the Court was asked to interpret Real

Property Tax Law (“RPTL”) § 421-g and to determine

whether apartments located in buildings receiving tax

benefits pursuant to that section are eligible for luxury

rent decontrol under the Rent Stabilization Law (“RSL”).

In relevant part, RPTL § 421-g says,

Notwithstanding the provisions of any local

law for the stabilization of rents in multiple

dwellings or the emergency tenant protection

act of nineteen seventy-four, the rents of each

dwelling unit in an eligible multiple dwelling

shall be fully subject to control under such

local law, unless exempt under such local law

from control by reason of the cooperative or

condominium status of the dwelling unit, for

the entire period for which the eligible multiple

dwelling is receiving benefits pursuant to this

section . . . .

3a

Appendix

After considering RPTL § 421-g’s text, the statute’s

legislative history in the Assembly and Senate, nine

briefs from the parties and amici curiae, nearly fortyfive minutes of oral argument, and an 18-page dissent

by Chief Judge Fiore, six Judges of this Court agreed

that apartments in buildings receiving the RPTL

§ 421-g ta x abatement are not subject to luxury

deregulation (“Opinion”).

Now, Defendant-Appellant 50 Mur ray Street

Acquisition LLC (“50 Murray”) seeks to reargue the

issues the Court has already considered and decided.

Reargument is appropriate only where a court “overlooked

or misapprehended” controlling law or relevant facts. See

NY CPLR § 2221(d). And, although 50 Murray disagrees

with the majority’s interpretation of RPTL § 421-g, none

of 50 Murray’s three arguments in support of its motion

for reargument identify any binding precedent or relevant

facts that the Court overlooked or misapprehended.

First, 50 Murray asserts that RPTL § 421-g’s

legislative history renders the majority’s interpretation

of the statute “unsustainable.” But, 50 Murray cannot

dispute that RPTL § 421-g’s legislative history was a

primary focus of the nine briefs submitted to the Court,

that it was discussed at length during oral argument and

in the dissent, and that it is expressly addressed by the

Opinion—indeed, 50 Murray’s own Reargument Brief

quotes the majority’s rejection of 50 Murray’s argument

regarding RPTL § 421-g’s legislative history. The law is

well-settled that reargument is not “a vehicle to permit the

unsuccessful party to argue once again the very questions

4a

Appendix

previously decided.” Pro Brokerage, Inc. v. Home Ins.

Co., 99 A.D.2d 971, 971 (1st Dep’t 1984). That principle

applies here, and the Court should not permit 50 Murray

to rehash arguments regarding the legislative history of

RPTL § 421-g which have already been made and rejected.

Second, 50 Murray claims that reargument is

appropriate because the Court misinterpreted the words

“subject to control under” as used in RPTL § 421-g. As

with the statute’s legislative history, RPTL§ 421-g’s

text was front and center in the parties’ briefing, at oral

argument, and in the dissent, and is examined in detail in

the Opinion. 50 Murray identifies no controlling precedent

or relevant facts overlooked by the Court.

Third, 50 Murray argues for the first time in its

Reargument Brief that the Court’s interpretation of

RPTL § 421-g “raises serious constitutional problems”

under the United States Constitution’s Takings and Due

Process Clauses. Even putting aside that 50 Murray

cannot raise new arguments for the first time on appeal

(much less on a motion for reargument of an appeal), this

argument is completely without merit. The United States

Supreme Court has made clear that imposing limits on

the rents a landlord may charge for an apartment is not

a “taking” of the landlord’s property rights under the

Takings Clause. See, e.g., Yee v. City Of Escondido, 503

U.S. 519 (1992). And, this Court’s interpretation of RPTL

§ 421-g did not “take” or deprive 50 Murray of any right;

it only clarified that 50 Murray never had any right in the

first place to luxury decontrol apartments in a building

receiving an RPTL § 421-g tax subsidy.

5a

Appendix

For these reasons, and the reasons discussed below,

reargument is inappropriate and 50 Murray’s attempt to

relitigate issues already decided should be rejected.

ARGUMENT

I.

50 MURRAY HAS NOT MET THE

STANDARD FOR REARGUMENT

Under CPLR § 2221(d), reargument is permissible only

where a movant demonstrates that the court “overlooked

or misapprehended” some binding precedent or relevant

fact, and a motion for reargument “shall not include any

matters not offered on the prior motion.” See CPLR

§ 2221(d). Thus, a motion for reargument cannot be used

by an “unsuccessful party to argue once again the very

questions previously decided” or to “advance arguments

different from those tendered on the original application.”

Foley v. Roche, 68 A.D.2d 558, 567-68 (1st Dep’t 1979);

see also William P. Pahl Equip. Corp. v. Kassis, et al.,

182 A.D.2d 22, 27, 32 (1st Dep’t 1992) (“Reargument is

not designed to afford the unsuccessful party successive

opportunities to reargue issues previously decided

. . . .”); N. Am. Van Lines, Inc. v. Am. Int’l Co., 11 Misc.3d

1076(A), 2006 WL 908653, at **2-3 (N.Y. Sup. Ct. 2006)

(Fried, J.) (plaintiffs’ arguments in support of their

motion for reargument were “completely devoid of merit”

because they were not raised in the original motion).

Yet, that is precisely what 50 Murray seeks to do here.

Unable to identify any controlling law or relevant facts

that the Court overlooked, 50 Murray simply repeats two

6a

Appendix

arguments that it previously made and which the Court

rejected, and offers one new “constitutional argument”

that 50 Murray has never made to any court and which

is not appropriately considered for the first time on this

motion.

This Court has already thoroughly considered the

issues in this case and there is no reason for it to do so

again.

A. The Court Has Already Considered and Rejected

50 Murray’s Arguments Regarding RPTL § 421-g’s

Legislative History

Relying on many of the same facts and much of the

same case law that it previously cited in its brief on appeal,

50 Murray argues that reargument is appropriate because

the majority gave “short shrift to the legislative history and

context here.” (Reargument Br. at 7.) However, the Court

did not overlook any controlling precedent or relevant facts

regarding RPTL § 421-g’s legislative history. In fact, the

Opinion details RPTL § 421-g’s legislative history in both

houses of the Legislature, and acknowledges the dissent’s

point that “aspects of the legislative history can be read to

demonstrate” the Legislature’s intention that apartments

in RPTL § 421-g not be eligible for luxury rent decontrol,

“including a memorandum in support of the bill from the

Mayor’s Director of State Legislative affairs that predated the bill’s passage in the Assembly.” (Opinion at 10.)

And after considering that legislative history, and the

dissent’s examination and analysis of it, the Court rejected

50 Murray’s argument that RPTL § 421-g’s legislative

history determines the statute’s meaning.

7a

Appendix

The Court reached this conclusion only after extensive

discussion of RPTL § 421-g’s legislative history at oral

argument. (See 6/4/2019 H’rg Trans. at 28:14-15 (“JUDGE

STEIN: What about the supporters’ memorandum? . . .

What about the memorandum in support of the bill? . . .

That doesn’t say anything?”); id. at 27:18-20 (“JUDGE

WILSON: What is the rock crushing part of the Assembly

legislative history that supports your position?”); id.

at 29:17-18 (“JUDGE RIVERA: [Mayor Giuliani’s] own

official says these properties will be subject to rent

stabilization.”); id. at 26:20-24 (“JUDGE STEIN: Well, I

mean we understand . . . about the letters and who said

what and – and all of that. But the fact of the matter is, is

that the bill was not amended, was not changed, did – did

not clarify anything. . . . So it seems to me that maybe

they thought they had something they didn’t have.”); id. at

19:22-20:2 (“CHIEF JUDGE DIFIORE: So the purpose

[of RPTL § 421-g] is revitalization? MR. MCGUIRE: Yes,

right of this ghost town. . . . JUDGE RIVERA: But – but

it is possible that that’s not the only purpose, correct?”).1

The Court even asked 50 Murray whether legislative

history should trump a statute’s clear text, and 50 Murray

agreed that it should not:

1. The Court posed similar questions regarding RPTL

§ 421-g’s legislative history to the Plaintiffs-Appellants’ counsel.

See, e.g., id. at 13:3-7, 14:2-3 (“JUDGE FAHEY: More compelling

to me is, what did the sponsors say? I mean, what – what were

the committee reports from the legislative body? Those kind of –

that kind of legislative history seems to me is – is relatively more

authentic. . . . So we take to the next phase then, What about the

agency interpretations?”).

8a

Appendix

JUDGE RIVERA: If the legislative history is

completely at odds with the text, and the only

sensical reading of the text, which do we choose

between?

...

MR. MCGUIRE: Go with the text. You go with

the text.

(Id. at 31:13-25.)

To the extent 50 Murray is arguing that the Court was

required to consider RPTL § 421-g’s legislative history

in determining the statute’s meaning, the Court clearly

did so. Nothing was overlooked. 50 Murray may disagree

with the majority’s reading of that legislative history,

but its contention that the Court should have affirmed

the Appellate Division on the basis of RPTL § 421-g’s

legislative history was considered and discussed at length

at oral argument and in the Opinion. Moreover, the very

same arguments 50 Murray makes in its Reargument

Brief regarding RPTL§ 421-g’s legislative history were

previously made in 50 Murray’s brief in opposition to

this appeal. (50 Murray’s Opposition Br. at 4-11, 20-21,

41-51.) Reargument is not a means for a party to relitigate

arguments already made and rejected, Pro Brokerage, 99

A.D.2d at 971, and the Court should reject 50 Murray’s

attempt to do that here.

9a

Appendix

B. The Court Has Already Considered and Rejected

50 Murray’s Interpretation of the Words “Subject

to Control”

Next, 50 Murray argues that reargument is appropriate

because the Court improperly assumed that “the word

‘control’ in the phrase ‘subject to control’ cannot refer to

‘the antithetical concept of decontrol.’” (Reargument Br.

at 11.) Again, however, 50 Murray identifies no binding

precedent or relevant facts overlooked by the Court. Nor

can it. As noted above, the Court’s interpretation of RPTL

§ 421-g was a matter of first impression for the Court of

Appeals and no precedent bound the Court.

The entirety of 50 Murray’s argument rests on its

analogy to certain statutes that, 50 Murray says, use

the phrase “subject to control under” a chapter to mean

subject to all provisions of the chapter. This is neither

controlling precedent nor overlooked facts, and is no

basis for reargument. More fundamentally, 50 Murray’s

argument entirely misunderstands the Court’s Opinion.

The Court determined that the “legislature’s intention,

as reflected in the language of the statute at issue here,

is clear and unescapable” because of the Legislature’s use

of a “notwithstanding clause” to precede the reference to

“control under” the rent stabilization laws:

The statute does not say that eligible units shall

be fully subject to “the provisions” any local law

for the stabilization of rents. Put differently, the

notwithstanding clause of the statute evinces

the legislature’s intent that any “local law for

10a

Appendix

the stabilizations of rents” that would exempt

the unit from “control under such local law”

does not apply to buildings receiving RPTL §

421-g benefits, with the sole exception being for

cooperatives and condominiums.

(Opinion at 6.) As it did in its opposition brief, 50 Murray

simply ignores the importance of the notwithstanding

clause in RPTL § 421-g. The statutes to which 50

Murray refers in its Reargument Brief do not use a

notwithstanding clause to modify the phrase “subject to

control under.”

As important, the Court previously considered

extensive briefing from 50 Murray, as well as from

another landlord in a companion case (West v. 90 West,

et al.), and amicus curiae the Real Estate Board of New

York, each of which made the same argument that 50

Murray makes in its Reargument Brief—i.e. that the

phrase “subject to control” as used in RPTL § 421-g was

intended to subject apartments in RPTL § 421-g buildings

to the rent control and decontrol provisions of the rent

stabilization laws. After considering these arguments,

the Court rejected them, saying, “if accepted defendants’

proffered construction would simultaneously render

superfluous the entire notwithstanding clause and the

exception for cooperatives and condominiums. We reject

defendants’ suggestion that we read those provisions out

of the statute.” 2 (Opinion at 6-7.)

2. As with RPTL § 421-g’s legislative history, the meaning of

the phrase “subject to control” was discussed repeatedly during

oral argument. See, e.g., 6/4/2019 H’rg Trans. at 6:13-15 (“JUDGE

11a

Appendix

C. 50 Murray’s New “Takings” Argument Is Both

Procedurally Improper and Meritless

Finally, 50 Murray’s Reargument Brief asserts a new

argument, which it did not make to Supreme Court, the

Appellate Division, or in its brief or arguments on this

appeal. Relying heavily on the United States Supreme

Court’s decision in Stop the Beach Renourishment, Inc. v.

Fla. Dep’t of Envtl. Prot., 560 U.S. 702 (2010), 50 Murray

contends that the majority’s interpretation of RPTL

§ 421-g may deprive 50 Murray of “due process” and

constitute a “taking” under the U.S. Constitution. For

several reasons, this argument should be rejected.

To start, a motion for reargument must be limited to

fact or law overlooked in respect of arguments previously

made. It is well-established that “[r]eargument is not

FEINMAN: Well, what about the argument that subject to control,

control means govern, as opposed to, you know, rent control or rent

stabilization?”); id. at 18:1-11 (“JUDGE RIVERA: It’s a compelling

use of language that [appellant’s] counsel makes when he says

control . . . doesn’t mean decontrol. MR. MCGUIRE: I’m certainly

not saying there are no text-based arguments on – on behalf of

the position that my adversaries make.”); id. at 21:5-21 (“JUDGE

GARCIA: Counsel, why put that provision in at all . . . I mean,

they had an idea about putting that provision in – it seems fairly

clear from the statute – that in exchange for this benefit, there

was going to be some type of control over these apartments.”);

id. at 32:14-15 (“JUDGE FEINMAN: Why would they be talking

about decontrol, if its not controlled in the first place?”). Given this

background, it is difficult to understand 50 Murray’s argument

that the Court somehow overlooked any facts in respect of the

meaning of “subject to control” as used in RPTL § 421-g.

12a

Appendix

available where the movant seeks only to argue ‘a new

theory of liability not previously advanced.’” DeSoignies

v. Cornasesk House Tenants’ Corp., 21 A.D.3d 715, 718

(1st Dep’t 2005); see also William P. Pahl Equip., 182

A.D.2d at 27 (“reargument is not designed to afford

the unsuccessful party . . . opportunities . . . to present

arguments different from those originally asserted”);

Simpson v. Loehmann, 21 N.Y.2d 990, 990 (1968) (“A

motion for reargument is not an appropriate vehicle

for raising new questions.”). The fact that 50 Murray’s

“takings” and “due process” argument is being made for

the first time in its Reargument Brief is a sufficient basis

to reject it. 3

The substance of the argument is also simply

wrong. The United States Supreme Court has held

that the imposition of rent control or stabilization, like

the requirements imposed by RPTL § 421-g, are not a

“taking” of any property or right of the owners of the

affected apartments. See Yee v. City Of Escondido, 503

U.S. 519 (1992) (“When a landowner decides to rent

his land to tenants, the government may place ceilings

3. Citing 22 N.Y.C.R.R. § 500.24(d)—which permits a party

to raise a new legal argument on a motion for reargument only for

“extraordinary and compelling reasons”—50 Murray argues that

“special circumstances” warrant consideration of its constitutional

argument, despite that it has never before raised this argument.

(Reargument Br. at 16 n.1.) Not so. The Court’s Opinion, and its

correct interpretation of RPTL § 421-g, does not impose some

irreparable harm or injustice on 50 Murray, and 50 Murray’s

failure to raise a meritless constitutional argument at any stage

of this action is neither extraordinary nor compelling.

13a

Appendix

on the rents the landowner can charge or require the

landowner to accept tenants he does not like without

automatically having to pay compensation.”) (internal

citations omitted); see also Pennell v. City of San Jose,

485 U.S. 1 (1988). The Stop the Beach Renourishment

decision is not to the contrary; in fact, that case stands

only for the limited proposition that decisions of a state

judiciary (like those of other state actors) may be subject

to the Takings Clause. Moreover, the Supreme Court in

that case rejected property owners’ argument that a state

court’s decision upholding municipality rights to repair

beachfront property constituted an impermissible taking.

The majority’s Opinion here did not “take away” or

“deprive” 50 Murray of any right. Rather, it corrected 50

Murray’s misinterpretation of RPTL § 421-g and clarified

that 50 Murray never had a right in the first place to

luxury rent decontrol apartments in a building receiving

an RPTL § 421-g tax abatement. Moreover, 50 Murray

chose to subject its apartments to rent stabilization in

exchange for a substantial tax abatement. Thus, no right

existed that the Court might “take” or as to which 50

Murray was owed greater due process than it received

in this proceeding.

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CONCLUSION

For the reasons stated above, Defendant-Appellant 50

Murray Street Acquisition LLC’s Motion for Reargument

should be denied.

Dated: New York, New York

August 12, 2019

Respectfully submitted,

FRIEDMAN KAPLAN SEILER

& ADLEMAN LLP

/s/________________________________

Robert S. Smith

Christopher M. Colorado

Anil K. Vassanji

7 Times Square

New York, New York 10036

(212) 833-1100

Serge Joseph

HIMMELSTEIN, McCONNELL,

GRIBBEN DONOGHUE &

JOSEPH LLP

15 Maiden Lane

New York, New York 10038

(212) 349-3000