Barrett Japaning, Inc. v. Bialobroda, Index No. 105944/11, 150031/17

• Decision Date: 19 January 2021
• Docket Number: Appeal No. 12896-12897-12897A,Case No. 2019-04299, 2019-3793,Index No. 105944/11, 150031/17
• Citation: 140 N.Y.S.3d 498,190 A.D.3d 544
• Parties: BARRETT JAPANING, INC., Plaintiff-Appellant, v. Anna BIALOBRODA, Defendant-Respondent. In the of Matter of Barrett Japaning, Inc., Petitioner-Appellant, v. New York City Loft Board et al., Respondents-Respondents.
• Court: New York Supreme Court — Appellate Division

190 A.D.3d 544

140 N.Y.S.3d 498

BARRETT JAPANING, INC., Plaintiff-Appellant,

v.Anna BIALOBRODA, Defendant-Respondent.

In the of Matter of Barrett Japaning, Inc., Petitioner-Appellant,

v.New York City Loft Board et al., Respondents-Respondents.

Index No. 105944/11, 150031/17

Appeal No. 12896-12897-12897A

Case No. 2019-04299, 2019-3793

Supreme Court, Appellate Division, First Department, New York.

ENTERED: January 19, 2021

Zane and Rudofsky, Melville (Edward S. Rudofsky of counsel), for appellant.

Anna Bialobroda, respondent pro se.

James E. Johnson, Corporation Counsel, New York (Kate Fletcher of counsel), for New York City Loft Board, respondent.

Webber, J.P., Mazzarelli, Gonza´lez, Scarpulla, Shulman, JJ.

Judgment, Supreme Court, New York County (Shlomo S. Hagler, J.), entered July 17, 2019, dismissing the action, and bringing up for review an order, same court and Justice, entered January 12, 2017, which granted defendant's CPLR 3211 motion to the extent of dismissing the amended complaint's first cause of action, unanimously affirmed, without costs. Appeal from order, same court and Justice, entered May 3, 2019, which granted defendant's motion for summary judgment dismissing the amended complaint's second and third causes of action, unanimously dismissed, without costs, as subsumed in the appeal from the judgment. Judgment, Supreme Court, New York County (Debra A. James, J.), entered April 19, 2019, denying petitioner Barrett Japaning, Inc.'s (Barrett) petition to annul an order of respondent New York City Loft Board, dated November 17, 2016, which denied Barrett's application for reconsideration of a Loft Board order, dated April 21, 2016, which declared the subject building to be an interim multiple dwelling under the Multiple Dwelling Law, and dismissing the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.

First, in the appeal from the dismissal of the article 78 proceeding, the Loft Board's determination was rational and not arbitrary and capricious or contrary to law or procedure (see generally Matter of Kaufman v. Anker, 42 N.Y.2d 835, 836–837, 397 N.Y.S.2d 376, 366 N.E.2d 77 [1977] ). All of Barrett's attempts to file its reconsideration application were either by improper means, incomplete, or untimely. The Loft Board's construction of its rules as requiring that reconsideration applications be filed by mail or hand delivery is rational and entitled to deference (see Shih v. Waterfront Commn. of N.Y., 83 A.D.3d 564, 565, 922 N.Y.S.2d 36 [1st Dept. 2011], lv denied 18 N.Y.3d 804, 2012 WL 87012 [2012] ; Matter of 902 Assoc. v. New York City Loft Bd., 229 A.D.2d 351, 352, 646 N.Y.S.2d 4 [1st Dept. 1996] ). The Board properly adhered to the letter of its prescribed procedural rules (see Matter of ACME Bus Corp. v. Orange County, 28 N.Y.3d 417, 425, 45 N.Y.S.3d 852, 68 N.E.3d 671 [2016] ), and is not bound by any "administrative error" on the part of its staff in its acceptance of Barrett's noncompliant filings ( Matter of Beck v. Walker, 286 A.D.2d 996, 996, 730 N.Y.S.2d 658 [4th Dept. 2001] ).

In the appeal from the July 17, 2019 judgment, the motion court properly granted defendant Anna Bialobroda's motion for summary judgment dismissing the amended complaint's second cause of action. The lack of a certificate of occupancy (CO) for the Building precludes Barrett from seeking to recover rent or use and occupancy for Bialobroda's units (see Multiple Dwelling Law §§ 301[1], 302[1][a]-[b] ; Jo–Fra Props., Inc. v. Bobbe, 81 A.D.3d 29, 33, 917 N.Y.S.2d 119 [1st Dept. 2010], lv dismissed 17 N.Y.3d 933, 935 N.Y.S.2d 575, 959 N.E.2d 512 [2011] ; 640 Broadway Renaissance Co. v. Eisner, 212 A.D.2d 376, 622 N.Y.S.2d 262 [1st Dept. 1995], lv dismissed 86 N.Y.2d 837, 634 N.Y.S.2d 445, 658 N.E.2d 223 [1995], cert denied 517 U.S. 1155, 116 S.Ct. 1541, 134 L.Ed.2d 645 [1996] ). The motion court likewise properly dismissed the third cause of action for "windfall profits," as the lack of a CO again bars Barrett from seeking to recoup the monies which Bialobroda received by subletting her premises, in violation of the proprietary leases, in order to prevent her from being...