Berry Estates, Inc. v. Marrero

• Decision Date: 07 September 1979
• Citation: 101 Misc.2d 297,420 N.Y.S.2d 970
• Parties: BERRY ESTATES, INC. and Blueberry Hill Management Corp., Petitioner, for a Judgment pursuant to CPLR Article 78, v. Victor MARRERO, as Commissioner of the State of New York, Division of Housing and Community Renewal; Robert E. Herman, as Assistant Commissioner of the State of New York Division of Housing and Community Renewal, and as State Rent Administrator; State of New York, Division of Housing and Community Renewal, Respondents, and another action.
• Court: New York Supreme Court

Page 970

420 N.Y.S.2d 970

101 Misc.2d 297

BERRY ESTATES, INC. and Blueberry Hill Management Corp. Petitioner, for a Judgment pursuant to CPLR Article 78, v. Victor MARRERO, as Commissioner of the State of New York Division of Housing and Community Renewal; Robert E. Herman as Assistant Commissioner of the State of New York Division of Housing and Community Renewal, and as State Rent Administrator; State of New York, Division of Housing and Community Renewal, Respondents, and another action.

Supreme Court, Rockland County.

Sept. 7, 1979.

Harold Zucker, New York City, for respondents.

Donald Tirschwell, New City, for petitioner, Berry Estates.

WILLIAM A. ZECK, Justice.

The matters before the Court at Special Term are three-fold: (1) An Article 78 proceeding brought by certain owners of residential apartments ("landlords") in the Village of Spring Valley to determine the applicability of the Emergency Tenant Protection Act of 1974 (ETPA) to those apartments; (2) an action brought by the New York State Division of Housing and Community Renewal ("Division") against said landlords for a permanent injunction restraining them from violating the ETPA; and, (3) a motion by the Division for a temporary injunction and a temporary restraining order pending the determination of the motion.

By Chapter 576 of the Laws of 1974, the State Legislature enacted the Emergency Tenant Protection Act of 1974 (ETPA), (McK.Unconsol.Laws, § 8621 et seq.). The Division was designated Administrator of the ETPA for the counties of Nassau, Rockland and Westchester. (ETPA, § 8(a) and 14(b), McK.Unconsol.Laws, § 8628(a), 8634(b)). On May 29, 1974, the Division promulgated the Tenant Protection Regulations ("Regulations") pursuant to ETPA, § 10(a), (McK.Unconsol.Laws, § 8630(a)).

The ETPA provides that where a city, town or village declares the existence of an emergency requiring the regulation of residential rents for all or separate classes of housing accommodations, the local effective date (LED) is the first day of the month or other rental period following that declaration of emergency. It also provides that, for the type of housing accommodations here involved, the initial legal regulated rent shall be the rent reserved in the last effective lease or other rental agreement immediately preceding the local effective date unless the Division grants an adjustment upon timely application by the landlord or tenant.

The Village of Spring Valley ("Village") adopted, at different times, three resolutions, each declaring an emergency with respect to different classes of apartments in the Village. After the second resolution (Resolution No. 2) was found invalid by this Court in an injunction action brought by the Division against a different landlord ¹, and while an appeal by the intervenor-Village was pending from that determination ², the Village adopted a fourth resolution (Resolution No. 4), which would again regulate the class of apartments covered by Resolution No. 2 in the event its appeal was unsuccessful. Resolutions No. 1 and 3 were never the subject of legal attack, and are not involved in these proceedings, nor in the "Nat Mack" case.

Resolution No. 2, adopted September 30, 1974, provides, in pertinent part, that:

"A Public emergency exists requiring the regulation of residential rents in all residential housing accommodations not previously regulated in the resolution of June 27, 1974 (Resolution No. 1), except those accommodations in structures that have not completed all planned construction of all rental accommodations prior to September 1, 1974."

Resolution No. 4, adopted December 5, 1978, provides, in pertinent part, that:

"A public emergency continues to exist in all residential housing accommodations set forth in the Village Board resolutions of . . . September 30, 1974 . . ."

With regard to the landlord's Article 78 proceeding, it is improperly brought herein. By its terms, CPLR § 7801 provides that Article 78 may not be used to challenge a determination "which is not final". Accordingly, to the extent to which this proceeding has been brought by the Petitioner to challenge the March 14, 1979 communication issued by the Respondent, it may in no sense be considered a challenge to a final determination by a "body or officer". (Oliver v. Lavine, 53 A.D.2d 616, 384 N.Y.S.2d 25; Carville v. Allen, 13 A.D.2d 866, 214 N.Y.S.2d 985.)

Further, the Court is not constrained to convert the Petitioner's Article 78 proceeding to one for declaratory judgment, as there are no constitutional questions readily apparent from these papers and since such issues may be pleaded as affirmative defenses in the action for a permanent injunction. It is clear that the tenant may attack the initial, legal, regulated rent under Section 9(a), because of "unique or peculiar circumstances" (within 60 days of the local effective date), and also under Section 9(b) because it exceeds the "fair market rent" (within 90 days after notice from the landlord of the legal regulated rent pursuant to Subdivision d), while the landlord may only attack under Section 9(a). This, however, without further facts, does not appear to violate the equal rights clause of the Constitution, even though there is no reciprocal notice requirement from tenant to landlord, or from the (state) Division to the landlord, regarding the initial legal regulated rent. The Constitution does not mandate that landlords and tenants have equal numbers of remedies for their complaints, but only that the basic rights of...