D'Alessandro v. N.Y. State Div. of Hous. & Cmty. Renewal
| Decision Date | 04 August 2010 |
| Docket Number | Index No.: 115845-2009 |
| Citation | 2010 NY Slip Op 34115 (U) |
| Parties | In the Matter of the Application of Salvatore D'Alessandro and Andres Baltra, Petitioners, for a Judgment pursuant to Article 78 of the Civil Practice Laws and Rules v. The New York State Division of Housing and Community Renewal (DHCR), Respondents |
| Court | New York Supreme Court |
DECISION/ ORDER
Recitation, as required by CPLR § 2219 [a] of the papers considered in the review of this (these) motion(s):
PAPERS
MOTION SEQ NO. 1 NUMBERED Verif Petition w/exhs 1 Verif Answer w/exhs 2 Original Records (Return)
3 Pet reply w/PK affirm 4 MOTION SEQ NO. 2 N/M by owner to intervene in & deny the petition w/AE affirm, exhs 5 Amended n/m by owner to intervene 6 Pets' opp w/PK affirm, exh 7 Owner's reply and further support w/AE affirm, FJR affid, exhs 8
Upon the foregoing papers, the decision and order of the court is as follows:
GISCHE J.:
This petition is brought by Andres Baltra ("Baltra") and Salvatore D'Alessandro ("D'Alessandro) pursuant to Article 78 of the CPLR. Petitioner seeks an order vacating respondent's ("DHCR") order denying Baltra and D'Alessandro's petition for administrative review ("PAR"). Baltra is the tenant of record of apartment 2A located at 19 Barrow Street, New York, New York ("building"). The building is presently owned by a new owner ("Rudd" or "owner") who has brought a motion to intervene in this proceeding and to deny the petition.
The petitioners oppose the owner's motion. Although DHCR takes no position on whether the owner should be allowed to intervene, it also seeks the dismissal of this proceeding (CPLR §§ 3211; 7804 [f]).
Where a motion to dismiss is premised upon CPLR §7804 [f], only the petition and the exhibits attached thereto may be considered and all the allegations contained therein are deemed to be true (Green Harbour Homeowners' Ass'n, Inc. v. Town of Lake George Planning Board, 1 AD3d 744 [3rd Dept 2003]). Similarly, on a motion to dismiss brought pursuant to CPLR § 3211, the court is required to presume the truth of all allegations contained in the challenged pleadings and resolve all inferences which may reasonably flow therefrom in favor of the non-movant (Cron v. Hargro Fabrics, Inc., 91 NY2d 362 [1998]; Sanders v. Winship, 57 NY2d 391 [1982]). Thus, the court's inquiry is whether the petitioner has a cause of action, not whether it has stated one (Guggenheimer v. Ginzberg, 43 NY2d 268 [1977]; DePaoli v. Board of Educ., Somers Cent. School Dist., 92 AD2d 894 [2nd Dept 1983]).
The following facts are alleged:
Underlying Facts
Baltra is the tenant of apartment 2A, sometimes also referred to as apartment "2A/B" or "2AB." Regardless of how identified, it is unrefuted that the two apartmentsare one and the same. Baltra has lived in the apartment since 1975, D'Alessandro is his domestic partner. Although they registered as domestic partners in New York in January 2003, they have lived together in this apartment since 1978 when D'Alessandro moved in.
Baltra was employed by the former owner of the building. Although the new owner contends the previous owner gave Baltra a preferential rent, Baltra contends he was tricked into accepting a lease in 1993 that set forth the preferential rent of $750, but also identified the legal regulated rent as $1,500 a month. Baltra has, over the years, paid rent increases based on the preferential rent and he now argues that the preferential rent is the legal rent for the apartment and the registered legal rent for the apartment was fabricated by the previous landlord. The new owner has eliminated the preferential rent and offered Baltra a lease based on the legal registered rent of $2,185.89 plus applicable increases.
In August 2005, Baltra filed an overcharge claim with DHCR [Docket No. TH410015 R] ("2005 overcharge complaint"). In that complaint he alleged the rent of $1,019.07 was an overcharge, although a preferential rent. Using the base date of August 1, 2001, however, DHCR denied the overcharge petition, determining there was no overcharge because the legal regulated rent was higher and the "rental events occurring more than four (4) years before the filing of the complaint are barred from being reviewed and are not subject to challenge . . ." This determination was made by DHCR in its decision dated November 16, 2005 and although Baltra filed a PAR, it was rejected by DHCR as defective and Baltra never re-filed the PAR. Thus, the 2005 overcharge complaint resolved that the preferential rent was not an overcharge and thatthe legal regulated rent for the apartment was $1,913.74 though November 2004.
In October 2006, before the building was sold to its current owner, the prior owner (Teloca") offered Baltra a renewal lease for $1,092.95 a month for two years or $1,062.38 for one year. The lease indicates that this a "preferential rent," but the legal regulated rent for the apartment is $2,124.76 or $2,185.89 depending on whether it is a one or two year lease. Baltra accepted a two year lease.
In April 2008, before the lease expired, Baltra filed an overcharge complaint with DHCR [Docket No. WD 410176 R] ("2008 over charge complaint"). Shortly thereafter, in December 2008, D'Alessandro filed a separate complaint with DHCR [Docket No. WL 410013 RV] ("lease violation complaint") alleging that the Teloca and Rudd had each refused requests to add D'AIessandro's name to the lease although he and Baltra were registered domestic partners and both owners had accepted rent payments from D'Alessandro. In January 2009, the owner issued a renewal lease in Baltra's name, without the preferential rent. In February 2009 Baltra filed a supplemental complaint with DHCR, citing the owner's improper termination of the preferential rent. The overcharge and lease violation complaints consolidated by DHCR for consideration and decision.
After asking for and receiving additional documents from the parties about their claims and defenses, DHCR "terminated" the lease violation complaint on April 1, 2009 and then separately denied the 2008 overcharge complaint on April 24, 2009. Baltra and D'Alessandro filed a PAR on May 7, 2009 [Docket No. XE 410009 RT] challenging those decisions. On September 25, 2009, DHCR issued its Order and Opinion denying the PAR and affirming the rent administrator's decision. This petition ensued,petitioners alleging that the denial of the PAR arbitrary, capricious, without a rational basis and contrary to its own regulations. In particular Baltra argues that the 2008 rent overcharge claim only decided that the preferential rent is not in an illegal amount (i.e. not an overcharge) but DHCR did not decide or establish that the registered rent is the legal regulated rent for the apartment. Thus, Baltra argues this is still an open issue which DHCR should have decided. Baltra also claims that the preferential rent is the legal rent and that the legal regulated rent that was registered is without any basis in fact and should be "removed" from DHCR's records. Baltra contends further that the preferential rent cannot be unilaterally terminated by the owner and the owner must provide him with a renewal lease at the (lower) preferential rent.
In its Order denying the PAR, the commissioner gave several reasons why the rent administrator's decision was correct and affirmed. First, the base date for the 2008 overcharge claim was the April 25, 2004 (CPLR 213). However, since there had been a prior overcharge order [TH 410015 R] issued November 16, 2005, that established the legal rent at $2,038.13 per month for the period December 1, 2004 - November 30, 2006, the issue was whether the proper guideline increases had been taken since that date. Once the DHCR was satisfied that the increases charged were correct and "[all] rent adjustments to the base date for the complainant have been lawful according to the Rent Stabilization Law and Code," DHCR determined that the legal regulated rent was $2,038.13 as of November 30, 2006 and the preferential rent was $1,019.07. DHCR also determined that the events prior to November 30, 2006 could not be reviewed or collaterally attacked because Baltra never properly filed an appeal of that determination.
In sustaining the rent administrator's decision denying the lease violation petition, the commissioner found that although Rent Stabilization Code ("RSC") § 2522.5 [g] requires that a landlord add a "spouse" to a lease if the apartment is his or her primary residence, there is no such statutory requirement for a domestic partner, even if the partnership is registered. The commissioner noted that the partner could, however, "at the appropriate time, establish his succession rights, if any, to the subject apartment under RSC section 2523.5 [b] [1] . . ." Furthermore, if the owner agreed to add D'Alessandro as a named tenant, the owner would be entitled to a regulatory rent increase because it was a change in tenancy akin to a vacancy.
Discussion
Motion to intervene
At the outset, the court addresses whether the owner should be allowed to intervene in this proceeding on the grounds that it is a necessary party and upon that motion being granted, dismissal of this proceeding.
Under Article 78 the standard for intervention is liberal, requiring only that the proposed intervenor be "an interested person." CPLR § 1013, on the other hand, is more demanding, requiring that the proposed intervenor show that its claim or defense and the main action have a "common question of law or fact" (Bernstein v. Feiner, 43 A.D.3d 1161 [2nd Dept 2007]; County of Westchester v. Power Authority of State of N.Y., 188 A.D.2d 432 [1st Dept 1992]). The time requirements for challenging a PAR are set forth in RSC § 2530.1 and CPLR § 217 [1]; a petitioner has sixty (60) days to challenge the PAR order. This action was timely commenced, but the owner is...
To continue reading
Request your trial