Parkchester Apts. Co. v. Lefkowitz

• Decision Date: 04 March 1976
• Citation: 381 N.Y.S.2d 230,51 A.D.2d 277
• Parties: Application of PARKCHESTER APTS. CO., Petitioner-Respondent, v. Louis J. LEFKOWITZ, Attorney General of the State of New York, Respondent- Appellant, Mary Winfield and Jack Gordon, Intervenors-Respondents-Appellants.
• Court: New York Supreme Court — Appellate Division

Page 230

381 N.Y.S.2d 230

51 A.D.2d 277

Application of PARKCHESTER APTS. CO., Petitioner-Respondent, v. Louis J. LEFKOWITZ, Attorney General of the State of New York, Respondent- Appellant Mary Winfield and Jack Gordon, Intervenors-Respondents-Appellants.

Supreme Court, Appellate Division, First Department.

March 4, 1976.

Shirley Adelson Siegel, New York City, of counsel (Samuel A. Hirshowitz, New York City, with her on the brief, Louis J. Lefkowitz, Atty. Gen.), for respondent-appellant.

Harry H. Lipsig, P.C., New York City (Joseph P. Napoli, New York City, with him on the brief), for intervenors-respondents-appellants.

Edward N. Costikyan, New York City, of counsel (Jack Hassid, New York City, with him on the brief, Paul, Weiss, Rifkind, Wharton & Garrison, New York City, attys.), for petitioner-respondent.

Before STEVENS, P.J., and KUPFERMAN, LUPIANO, BIRNS and LANE, JJ.

MEMORANDUM DECISION.

Petitioner-respondent Parkchester Apts. Co., hereinafter Parkchester, submitted a condominium offering plan for filing to the Attorney-General which involved the North Quadrant of the Parkchester housing complex. After the Attorney-General's acceptance, an Article 78 proceeding was commenced by certain tenants (Matter of Whalen v. Lefkowitz, 36 N.Y.2d 75, 365 N.Y.S.2d 150, 324 N.E.2d 536, hereinafter Whalen), wherein the criteria for review of the plan by the Attorney-General under the General Business Law (§ 352--e) and the accuracy of representations in the filed material were questioned. Parkchester's second offering, which is the subject matter of this proceeding, involves the remaining quadrants--the South, East and West Quadrants (hereinafter the South Quadrant). The offering plan for the South Quadrant was submitted for filing with the Attorney-General in November, 1973. The Attorney-General refused to act on this plan solely because of the pendency of the Whalen proceeding. Accordingly, Parkchester commenced this proceeding to compel the Attorney-General to act and obtained a judgment (Saypol, J.) entered January 28, 1974, wherein the Attorney-General was directed to review within 15 days of the South Quadrant Plan and either issue a letter accepting the filing or notifying petitioner of deficiencies. We affirmed this judgment on May 16, 1974, with the observation that '(t)he Attorney-General took the position that while he was of the opinion that his acceptance for filing merely certified that the sponsor had submitted the data required by statute and did not attest to the accuracy of that data, Special Term's determination in the Whalen petition implied otherwise, and he was not prepared to accept the petition without further investigation. The Attorney General's concept of his duties in this regard is quite correct (citation). That being so, Special Term's direction that he act in the matter with reasonable dispatch is likewise correct' (Parkchester Apts. Co. v. Lefkowitz, 44 A.D.2d 442, 444--445, 355 N.Y.S.2d 592, 595). Nevertheless, the Attorney-General continued in his refusal to review the South Quadrant Plan, citing the pendency of the Whalen matter in the Court of Appeals and contending that the quadrants of the Parkchester complex were so interrelated that he could not review the South Condominium Offering Plan while the prospectus for the North Quadrant Condominium was in litigation. On February 17, 1975, the Court of Appeals affirmed, stating that 'the Attorney-General was not justified in refusing to review petitioner's resubmission, 'even for the purpose of determining whether specific deficiencies have been rectified, or new ones found to exist', solely on the ground that litigation was pending with respect to a related property. (Cf. Matter of Whalen v. Lefkowitz, 36 N.Y.2d 75, 365 N.Y.S.2d 150, 324 N.E.2d 536.)' (Parkchester Apts. Co. v. Lefkowitz, 36 N.Y.2d 688, 366 N.Y.S.2d 409, 325 N.E.2d 870).

During the pendency of these appeals a stay of Special Term's (Saypol, J.) judgment remained in effect pursuant to CPLR 5519. Also, during the appellate process, the Legislature enacted Chapter 1021 of the Laws of 1974, effective June 15, 1974, whereby section 352--e of the General Business Law was amended to declare that no offering plan can become effective unless 35% Of the tenants in occupancy agree to purchase their apartments, even if the sponsor waives his right to evict non-purchasing tenants, which Parkchester had, in both offering plans (General Business Law § 352--e(2--a)(1)(i)(ii)). On March 26, 1975, Parkchester requested that its offering plan, as updated, be reviewed in accordance with Special Term's judgment. The Attorney-General by letter dated March 27, 1975, refused to review the Plan solely on the ground that it did not contain a statement in conformity with the new law, I.e., the 35% Requirement. Subsequently, Parkchester moved for a supplemental judgment in this proceeding, directing the Attorney-General to review the South Quadrant Plan in accordance with the law in effect on November 26, 1973, or, alternatively, declaring the new law unconstitutional.

Special Term, citing CPLR 103(c), Sua sponte, severed Parkchester's motion from this proceeding and deemed it a separate Article 78 proceeding, treating the affidavits in support and in opposition to the motion as a petition and an answer. Under CPLR 103(c), the court is authorized, once it has jurisdiction over the parties, to retain a civil judicial proceeding even though not brought in the proper form. Under CPLR 105(d), a civil judicial proceeding is a prosecution of An independent application to the court for relief. CPLR 103(c) evolved from a provision that would have permitted the court to convert even a motion into a civil judicial proceeding (See Weinstein-Korn-Miller: New York Civil Practice § 103.08). The jurisdictional predicate for Special Term's treatment of the motion as a civil judicial proceeding inheres not in the service of the motion papers effected herein, but in the jurisdiction obtained over the parties in the Article 78 proceeding brought by Parkchester to compel the Attorney-General to act and which culminated in the judgment of Saypol, J., entered January 28, 1974. As a consequence, treatment of the motion as an Independent application to the court for relief is improper because no...