By Eileen O’Toole, Esq., Contributing Editor
A number of decisions reported in this month’s issue turn on procedural questions, with some interesting results.
Following enactment of the HSTPA four years ago, the DHCR has issued numerous PAR decisions affirming the dismissal of high-rent/high-income deregulation applications that were pending but undecided when the HSTPA abolished this grounds for deregulation prospectively on June 14, 2019. In one Article 78 appeal of a DHCR ruling involving an owner’s application that sat for two years before the HSTPA upended the anticipated decision-making process, one court has looked askance at the DHCR’s claim that it was prohibited by the HSTPA from deciding pending applications when the law changed.
In Matter of 305 Riverside Corp. v. DHCR [LVT #32575], a Manhattan court pointed out that, before the HSTPA, the Rent Stabilization Law required that the DHCR send notice of high-rent/high-income deregulation applications to tenants within 20 days after owners filed them, and deregulate apartments if tenants didn’t answer the DHCR’s notice within 60 days. Describing the fact that the DHCR may have been “overwhelmed” or “disorganized” as no excuse for failing to comply with the law rather than permitting these applications to languish before the HSTPA abolished deregulation, the court sent the owner’s application back to the DHCR for an actual decision on the merits of the case. Presumably, the DHCR will appeal.
In Burrows v. 75-25 253rd St. LLC [LVT #32569], another case involving strict compliance with statutory deadlines, an appeals court reversed the lower court’s ruling that it could rely on inflated figures for legal regulated rents registered long before the 2016 base rent date. The appeals court ruled that the tenants’ claims were time-barred.
In ZB Prospect Realty v. Olenick [LVT #32573], a Brooklyn housing court dismissed a nonpayment eviction proceeding commenced after the tenant’s lease had expired. Although the tenant had continued paying monthly rent for a while after his lease expired before he stopped paying, RPAPL §711(2) provided that, if there was no lease in effect between the parties, an owner couldn’t maintain a summary eviction proceeding for nonpayment.
Another Brooklyn housing court discussed the evolution over 40 years of the “Farkas” test for determining whether pre-trial discovery was warranted in summary eviction proceedings. In 969 Carroll Assoc., LLC v. Mendes [LVT #32577], the court denied the tenant’s request for discovery in a succession rights case because the tenant didn’t demonstrate ample need for the information sought.
In another case, Charlton v. 92 Pinehurst Ave. LLC [LVT #32579], where the tenant sued the landlord for rent overcharge and claimed there was a fraudulent scheme to evade the Rent Stabilization Law, the court permitted the tenant to subpoena building-wide rent registration records that generally aren’t available to individual tenants as a matter of law.
In Lozito v. Celtic Park Mgmt. [LVT #32581], a co-op shareholder tenant brought an HP proceeding against the landlord cooperative corporation based on violations in his apartment. Over the tenant’s objection, the court granted the owner’s request to add the tenant to the case as a respondent, since his proprietary lease stated that the tenant was responsible for conditions that occurred within his apartment. A trial was needed to review the facts before determining which side was responsible for the violations.
While the ERAP program stopped accepting new applications in January 2023, issues involving the rental assistance program continue to surface. In Bernstein v. Tietz [LVT #32578], OTDA denied a co-op shareholder tenant’s ERAP application because the agency found that she wasn’t a tenant who paid “rent.” The tenant filed an Article 78 appeal of OTDA’s decision in New York County, where she lived, but the court agreed with OTDA that the appeal must be heard in Albany County, where OTDA’s office and decision-making were located.
