Glendora v. New York State Div. of Housing and Community Renewal

• Decision Date: 12 June 1995
• Citation: 628 N.Y.S.2d 343,216 A.D.2d 391
• Parties: In the Matter of GLENDORA, Appellant, v. NEW YORK STATE DIVISION OF HOUSING AND COMMUNITY RENEWAL, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 343

628 N.Y.S.2d 343

216 A.D.2d 391

In the Matter of GLENDORA, Appellant, v. NEW YORK STATE DIVISION OF HOUSING AND COMMUNITY RENEWAL, et al., Respondents.

Supreme Court, Appellate Division Second Department.

June 12, 1995.

Glendora, White Plains, appellant pro se.

Dennis J. Saffran, Bronx (Lazaro S. Francisco III, of counsel), for respondents New York State Div. of Housing and Community Renewal, Angelo J. Aponte, David Ayala, Joseph Fernandez, Barbara M. Mayers, and Carol Short.

Dennis C. Vacco, Atty. Gen., New York City (Charles F. Sanders, of counsel), for respondent Mario Cuomo.

Before BALLETTA, J.P., and COPERTINO, ALTMAN and GOLDSTEIN, JJ.

MEMORANDUM BY THE COURT.

In a proceeding pursuant to CPLR article 78 challenging, inter alia, a determination of the New York State Division of Housing and Community Renewal dated September 24, 1992, which failed to award the petitioner treble damages for a rent overcharge, the petitioner appeals, as limited by her brief, from stated portions of an order and judgment (one paper) of the Supreme Court, Westchester County (Coppola, J.), dated October 14, 1993, which, inter alia, granted the respondents' cross motion to settle an order and judgment (one paper) to dismiss the petition, and dismissed the petition.

ORDERED that the order and judgment is affirmed insofar as appealed from, with one bill of costs to the respondents appearing separately and filing separate briefs.

The appellant filed a complaint of rent overcharge with the New York State Division of Housing and Community Renewal (hereinafter the DHCR). The DHCR's District Rent Administrator (hereinafter the DRA) determined that from December 1, 1990, through November 30, 1991, pursuant to the Emergency Tenant Protection Act of 1974, the appellant had been overcharged $5,349.74 for rent. Attached to the DRA's order was a "Notice of Right to Administrative Review and Filing Instructions" which stated that the appellant had 35 days from the issuance of the DRA's determination to file a Petition for Administrative Review (hereinafter PAR) challenging the DRA's determination. The appellant admittedly never filed a PAR. Rather, the appellant commenced a proceeding in Supreme Court against the DHCR, individual members of the DHCR, and then-Governor Mario Cuomo, challenging the DHCR's determination in that it failed to award her treble damages.

The Supreme Court properly treated the appellant's complaint as a petition pursuant to CPLR article 78 challenging the DHCR's determination (see, CPLR 103[c]. 9 NYCRR 2510.12, Judicial Review, provides, in pertinent part:

"The filing and determination of a PAR is a prerequisite to obtaining judicial review of any provision of these regulations or any order issued thereunder."

The appellant did not file a PAR. Thus, her proceeding was premature and properly dismissed for failure to exhaust her administrative remedies (see, Matter of Ponds v. New York State Div. of Hous. and Community Renewal, 191 A.D.2d 153, 594 N.Y.S.2d 28; Traendly v. New York State Div. of Hous. and Community Renewal, Off. of Rent Admin., 160 A.D.2d 883, 885, 554 N.Y.S.2d 316). Additionally, with regard to the respondent then-Governor Mario Cuomo, the appellant did not make any allegations in her petition upon which relief may be granted as against him. Therefore, the petition was properly dismissed as against him (see, Gaynor v. Rockefeller, 21 A.D.2d 92, 94, 248 N.Y.S.2d 792, affd. 15 N.Y.2d 120, 256 N.Y.S.2d 584, 204 N.E.2d 627). Moreover, the Supreme Court lacks jurisdiction over claims against the State (see, Morell v. Balasubramanian, 70 N.Y.2d 297, 300, 520 N.Y.S.2d 530, 514 N.E.2d 1101; Automated Ticket Systems v. Quinn, 90...