Ruskin Associates, LLC v. State, Div. of Hous. and Cmty. Renewal

• Decision Date: 05 October 2010
• Citation: 77 A.D.3d 401,908 N.Y.S.2d 392
• Parties: RUSKIN ASSOCIATES, LLC, Petitioner-Appellant, v. The STATE of New York DIVISION OF HOUSING AND COMMUNITY RENEWAL, Respondent-Respondent.
• Court: New York Supreme Court — Appellate Division

908 N.Y.S.2d 392 77 A.D.3d 401 RUSKIN ASSOCIATES, LLC, Petitioner-Appellant, v. The STATE of New York DIVISION OF HOUSING AND COMMUNITY RENEWAL, Respondent-Respondent. Supreme Court, Appellate Division, First Department, New York. Oct. 5, 2010.

Kucker & Bruh, LLP, New York (Alan D. Kucker of counsel), for appellant.

Gary R. Connor, New York (Martin B. Schneider of counsel), for respondent.

GONZALEZ, P.J., TOM, FRIEDMAN, McGUIRE, ABDUS-SALAAM, JJ.

Order, Supreme Court, New York County (Carol R. Edmead, J.), entered June 10, 2009, which, inter alia, denied as untimely the petition seeking an order directing respondent to determine a rent overcharge complaint that had been brought 30 years earlier, and granted respondent's cross motion to dismiss the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.

In response to tenant Sylvain Gilary's overcharge complaint, the Conciliation and Appeals Board (CAB) advised him in a letter dated August 28, 1979 that "[a] preliminary check of the records ... failed to reveal an enrollment for your dwelling unit" with the Rent Stabilization Association (RSA). Lack of enrollment, the letter explained, meant that CAB lacked jurisdiction over the matter, which would have to be referred to the New York City Department of Housing Preservation and Development (HPD). This letter was also forwarded to the owner of the building, Stephen Cox/GAEA Realty. Subsequently, by letter dated November 1, 1979, CAB forwarded Gilary's complaint to HPD for appropriate action, stating, "A check of the records indicates that this premises is [ sic ] not enrolled with [RSA]."As before, a copy of the letter was sent to the owner. In September 1980, a new owner bought the building.

HPD's Office of Rent Control, by order dated April 1, 1981, determined that Gilary's apartment was rent-controlled and established a maximum base rent for it. The landlord protested, claiming that the building was commercial rather than residential. In support of that claim, he submitted a 1972 certificate of occupancy for the building showing that its usage was for 10 offices, as well as the subject apartment's 1977 lease with a provision that it be used only for professional purposes. The owner contended further that, even if the apartment was residential, it was not rent-regulated because the building had fewer than six residential units.

Gilary, on the other hand, contended that the building contained 10 apartments, all with kitchens and bathrooms, of which six had residential tenants, two had commercial tenants, and two were vacant. Gilary submitted a 1974 residential lease between the prior tenant and the prior owner and a 1976 residential sublease between the prior tenant and himself.

As to the past history of the subject building, HPD records reflected that prior owners had been granted MBR increases in 1972, 1976 and 1978. The owner's 1972 application for rent increases indicated that the building contained six apartments, while on the 1978 application the owner listed the building as having 10 apartments. The 1980 application was denied because the landlord failed to properly certify and remove violations. A July 1980 inspection of the building found that two apartments were still occupied by the tenants listed on the l972 application, whichmeant that they were still rent-controlled. A March 1981 inspection of Gilary's apartment found that at least 95% of the space was being used for residential purposes.

By order dated ...