Peckham v. Calogero

• Decision Date: 05 May 2009
• Docket Number: No. 48.,48.
• Citation: 12 N.Y.3d 424,911 N.E.2d 813
• Parties: In the Matter of Daniel PECKHAM, Appellant, v. Judith A. CALOGERO, as Commissioner of the State of New York's Division of Housing and Community Renewal, et al., Respondents.
• Court: New York Court of Appeals Court of Appeals

911 N.E.2d 813

12 N.Y.3d 424

In the Matter of Daniel PECKHAM, Appellant, v. Judith A. CALOGERO, as Commissioner of the State of New York's Division of Housing and Community Renewal, et al., Respondents.

No. 48.

Court of Appeals of New York.

May 5, 2009.

Nixon Peabody LLP, New York City (Eileen M. Cunningham and Matthew C. Peluso of counsel), for appellant.

Belkin Burden Wenig & Goldman, LLP, New York City (Magda L. Cruz, Sherwin Belkin and Kristine L. Grinberg of counsel), for Chelsea Partners, LLC, respondent.

OPINION OF THE COURT

JONES, J.

Respondent Chelsea Partners, LLC (Owner) owns a three-story, 40-foot-deep building with a basement and eight residential units in Manhattan. Petitioner Daniel Peckham, the sole remaining occupant of the building, resides in an apartment subject to the Rent Stabilization Law and Code.

In May 2004, Owner filed an "Owner's Application for Order Granting Approval to Refuse Renewal of [Petitioner's] Lease and/or to Proceed for Eviction" (application) with the New York State Division of Housing and Community Renewal (DHCR). Owner plans to demolish the building and construct a six-story, 70-foot-deep building with 12 dwelling units in its place. According to Owner's plan, "[t]he Demolition will entail the removal of (a) the roof, (b) entire interior of the Building, (c) all partitions, (d) floor joints, (e) subfloors, and (f) building systems. In addition, much of the facade, and the entire rear wall of the Building will be removed." Petitioner opposed Owner's application, arguing that (1) Owner advised the New York City Department of Buildings (DOB) that the job involves "a reconstruction or an alteration" and (2) the evidence of financial ability could not be relied upon because the only thing it established was that the funds in question were held in the name of an entity other than Owner. On December 13, 2005, the Rent Administrator granted Owner's application, stating that "the owner has satisfied the conditions set forth under Section 2524.5(a)(2)(i) of the New York City Rent Stabilization Code."¹

One month later, petitioner filed a petition for administrative review (PAR) of the Rent Administrator's order, arguing, in part, that Owner failed to provide adequate proof of its financial ability to complete the undertaking. DHCR disagreed and, by order issued July 27, 2006, denied petitioner's PAR. Subsequently, petitioner commenced this CPLR article 78 proceeding against DHCR and Owner, seeking reversal of DHCR's order denying petitioner's PAR. For the first time, petitioner challenged DHCR's standards regarding what constitutes a "demolition" and what an apartment building owner has to show in order to demonstrate its "financial ability" to perform a particular undertaking. Despite DHCR's arguments that the order denying petitioner's PAR was properly supported, Supreme Court granted the petition to the extent of remanding the matter to DHCR "to clarify the standard used to determine a `demolition' and whether this project is a `demolition,' and to clarify the financial ability of Chelsea [Partners] to complete the project" (2007 WL 2176701, 2007 N.Y. Slip Op 32087[U], *18).

Following Supreme Court's order and judgment, DHCR agreed to abide by the court order remanding the matter. Owner appealed to the Appellate Division pursuant to that court's leave grant. At the Appellate Division, DHCR sought an affirmance of Supreme Court's order. DHCR argued that (1) "articulation of a standard for demolition applications will allow for more meaningful court review and give both owners and tenants guidance in a controversial area of rent regulation that has created uncertainty and confusion" and (2) more evidence of Owner's "financial ability" is needed.

In a 3-2 decision, the Appellate Division reversed Supreme Court, concluding that the granting of the petition and remand of the matter to DHCR were improper (54 A.D.3d 27, 861 N.Y.S.2d 316 [2008]). According to the court, Owner was entitled to treat DHCR's determination as final. Further, the court ruled that Supreme Court erred in finding that DHCR lacked a conclusive definition of "demolition," that DHCR's order denying petitioner's PAR was not based upon an incomplete factual record, arbitrary, capricious irrational or contrary to law, that DHCR properly determined that Owner had the financial ability to complete the undertaking, and that Owner established its intent to demolish and replace the building in question. The court also noted that petitioner's argument regarding DHCR's lack of appropriate "demolition" standards was not properly before Supreme Court. The dissenting Justices argued in support of Supreme Court's remand to DHCR by pointing out that the agency should be allowed to exercise its legislatively granted authority to develop rent regulations and accompanying standards. Specifically, they explained that given DHCR's concessions that there is no definition of demolition in the Rent Stabilization Law or Code, that its demolition determinations have been made on a case-by-case basis and that it did not address the weakness of the evidence regarding Owner's financial ability, Supreme Court's remand would give DHCR the opportunity to create standards courts could employ in determining whether DHCR's determinations are rationally based. Petitioner appeals as of right, pursuant to CPLR 5601(a), and we now affirm.²

Petitioner argues that Owner did not have standing to appeal Supreme Court's decision. We disagree and hold that the Appellate Division did not act in excess of its powers in granting Owner leave to appeal.

In addition, petitioner challenges DHCR's lack of a specific definition for the term "Demolition." This argument was not raised before the Rent Administrator or at petitioner's PAR. It was raised for the first time in the article 78 proceeding. As it is well settled that an argument "may not be raised for the first time before the courts in an article 78 proceeding" (Matter of Yonkers Gardens Co. v. State of N.Y. Div. of Hous. & Community Renewal, 51 N.Y.2d 966, 967, 435 N.Y.S.2d 706, 416 N.E.2d 1041 [1980]), this argument is not properly before us.

Petitioner further argues that the evidence of financial ability Owner submitted pertains to a different entity (Three Stars Associates, LLC) and that such evidence does not necessarily inure to the benefit of Owner. Although this argument was raised before the Rent Administrator, it was never repeated at the PAR or in the instant petition. Accordingly, we may not consider this argument.

However, petitioner's general arguments that DHCR's actions were arbitrary and capricious are before us. We hold that these arguments lack merit because there was a rational basis for DHCR's determination. "In reviewing an administrative agency determination, [courts] must ascertain whether there is a rational basis for the action in question or whether it is arbitrary and capricious" (Matter of Gilman v. New York State Div. of Hous. & Community Renewal, 99 N.Y.2d 144, 149, 753 N.Y.S.2d 1, 782 N.E.2d 1137 [2002] [citation omitted]). An action is arbitrary and capricious when it is taken without sound basis in reason or regard to the facts (see Matter of Pell v. Board of Educ. of...