### Matter of Livermen v Pascal 2024 NY Slip Op 33094(U) September 4, 2024 Supreme Court, New York County Docket Number: Index No. 451213/2023 Judge: Shahabuddeen Abid Ally Cases posted with a "30000" identifier, i.e., 2013 NY Slip

Op 30001(U), are republished from various New York State and local government sources, including the New

York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.NYSCEF DOC. NO. 51 INDEX NO. 451213/2023 RECEIVED NYSCEF: 09/04/2024 

### SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. SHAHABUDDEENABID ALLY 

### Justice In the Matter oftheApplication of KYPRIS LIVERMEN, Petitioner, For a JudgmentUnderArticle 78 of the Civil Practice Law and Rules -againstWOODY PASCAL, DEPUTY COMMISSIONER OF NEW YORK STATE DIVISION OF HOUSINGAND COMMUNITY RENEWAL, Respondent. PART16TR

INDEX NO. MOTION DATE MOTION SEQ. NO. 451213/2023 10/17/2023 003



### DECISION 

## & ORDER

The following e-filed documents, listed by NYSCEF document number, were read on this motion (Seq. No. 3) to/for CPLR ARTICLE 78 (BODY OR OFFICER): 1-14, 20-21, 38-43, 45, 47, 49-50 In this Article 78 proceeding, petitioner seeksjudicialreview ofrespondent's October 11, 2022 denial ofpetitioner's petition for administrative review ("PAR") ofthe determination of the Rent Administrator of the New York State Division of Housing and Community Renewal ("DCHR") issued on May 25, 2022. In lieu of filing an answer to the petition, respondent crossmoved on October 6, 2023, seeking remittal to DCHR for further consideration and review based onrespondent's concession thatitmisapplied the law. By Interim Decision and Order datedJuly 25, 2024, the Court denied the cross-motion, finding thatmisapplication oflaw didnotconstitute grounds for remittal. The Court directed respondent to file an answer to the petition, which respondent did onAugust 14, 2024. The Courtnow addresses petitioner's petition, and for the reasons discussed below, grants it in part. Petitioneris a tenant at 388 Bridge Street, Apt. 7C, Brooklyn, New York 11201 (the "Premises"), a rent-stabilized building. On March 16, 2021, petitioner filed a lease-violation complaint with DCHR alleging that the owner of the Premises offered a renewal lease, dated January 11, 2021, that did not include petitioner's wife's name and failed to deduct the utility allowance of 451213/2023 Kypris Livermen v. Woody Pascal Mot. Seq. No. 3 1 of 5 Page 1 of 5 

### [* 1]NYSCEF DOC. NO. 51 INDEX NO. 451213/2023 RECEIVED NYSCEF: 09/04/2024 $72.00 from the legal regulated rent ("LRR") of $622.00 per month. The owner of the Premises submitted an answer to the complaint wherein a revised renewal lease was offered adding petitioner's wife'snamebutstillfailing to deducttheutility allowancefrom theLRR. TheDCHRRent Administrator subsequently granted petitioner's complaint. The October 11, 2022 PAR order summarizes the RentAdministrator's order as follows: [T]he RA issued an order granting the tenants' complaint and directing the owner within 30 days to offer to the tenant a renewal lease for one or two years at the tenant's option, based on the record which shows that a prior order under Docket Number FW210043R [sic] established the LRR of $634.44 per month and that said LRR must further be reduced by the electric utility allowance of $84.00 in effect for 2021 and 2022. The RA also directed the owner not to increase the rentuntil the first rent payment occurringno less than 90 days after the datethat a proper lease offer is made to the tenants. Additionally, the RA directed the owner to amend the yearly apartment registrations of 2019, 2020, 2021 and 2022 to reflect both names of the tenants. Lastly, the RA directed the owner to issue a lease renewal on the same terms and conditions as were contained in the Vacancy Lease (including all Riders). (NYSCEF Doc. 3 at 1-2). Petitioner thereafter filed a PAR seeking an array ofamendments to the RentAdministrator's order. Respondentdenied the PAR, and petitioner subsequently commenced the instantArticle 78 proceeding. In this proceeding, petitionerasks thatrespondent's PAR denialbevacated and thathebe directed to grant the PAR. Specifically, petitionerargues that:

• Respondent erred legally when he determined that "the facts [of this matter] did notsupportretroactivity to a priorguideline," thereby effectively determiningthat the landlord could offer petitioner a renewal lease with rent set at a level notpermitted under the Rent Guidelines Board Rent Increase Order in place at the time petitioner shouldhavebeen offered a lease. • That the landlord should be required to refund to petitioner any rent overpayments made from January 1, 2020, to present, plus 9% interest. Respondent had denied that request on the grounds that "[t]he directive to refund excess rentpaid is alsonotrequiredin a leaseviolation order" and that, "[i]f, as thetenants suggest, they have been overcharged since January 2020, they may file a new rent

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### [* 2]INDEX NO. 451213/2023 NYSCEF DOC. NO. 51 RECEIVED NYSCEF: 09/04/2024 overcharge complaint." (NYSCEF Doc. 3 at 3) In arguing that respondent's denial ofthis portion ofthePAR was improper, petitionerrelies on9 N.Y.C.C.R. § 2507.2, whichprovidesthat "[t]hedivisionmayinstitute aproceedingonits owninitiative whenever the division deems it necessary or appropriate pursuant to the act or this Chapter." Petitioner also alleges thatDHCRhad converted ormerged theunderlying lease-violation proceeding into or with an overcharge complaint. Petitioner submits as proof of this conversion/merger a Request of Additional Information/Evidence from DCHR dated September 24, 2021. (NYSCEF Doc. 12) • That thelandlord shouldberequired to "putthe reason for theirnotreceiving the [LRR] onthe rent stabilized annual apartmentregistrations [f]rom2017-2022." Petitioner argues that the reason for this request "is because we are under the Deep Rent Skewedprogram[;] therefore[,] thelandlord is only entitled to the collectible rent. This is a material fact." Respondent denied this portion of the PAR on the basis that "[t]heproposed directive to add thetermDeep Rent SkewedUnitto the registrations is outside the scope of this lease violation proceeding." (NYSCEF Doc. 3 at 3) • Respondent erred whenhe permitted to let stand that portion of the RentAdministrator's order allowing the landlord to increase the rent after "the first rent paymentoccurringno less than 90 days after the datethat a proper lease offer is made tothetenants." RespondentdeniedthatportionofthePARbecause "[t]hedirective that the owner may not increase the rent until the first rental payment occurring 90 days afterthe dateofaproperleaseofferis in accordancewithlanguagedirectly from the Rent Stabilization Code and need not be removed." (NYSCEF Doc. 3 at 2) Petitioner argues that, "[d]ue to the nature of the Deep Rent Skewed program, the collectible rents fluctuate and in this instance the rent is decreasing" and that "[a]llowing the landlord to raise the rent 90 days after it as lawfully decrease is harmful to us." It is well settled that, in an Article 78 proceeding, a court reviews an agency decision to determine whether it violates lawful procedures, is arbitrary or capricious, or is affected by an error oflaw. CPLR § 7803(3); Kent v. Lefkowitz, 27 N.Y.3d 499, 505 (2016); W. 58th St. Coalition, Inc.
v. City ofN. Y., 188 A.D.3d 1, 8 (1st Dep't 2020). Here, respondent concedes that its determination 451213/2023 Kypris Livermen v. Woody Pascal Mot. Seq. No. 3 3 of 5 Page 3 of 5 

### [* 3]NYSCEF DOC. NO. 51 INDEX NO. 451213/2023 RECEIVED NYSCEF: 09/04/2024 that "the facts [of this matter] did not support retroactivity to a prior guideline" was contrary to 9 N.Y.C.R.R. § 2523.5(c)(l), whichprovides, inrelevant part, thatwhen a landlord "fails to timely offer a renewal lease

... the guidelines rate applicable shall be no greater than the rate in effect on the commencement date of theleasefor which a timely offer shouldhavebeen made." Therefore, the Court finds that, to this extent, and to this extent only, respondent's PAR order was "affectedby an error of law." Petitioner, however, fails to demonstrate that any otherportion of the PAR order was improper. Petitioner's purported evidence that the underlying lease-violation proceeding was converted into or merged with an overcharge proceeding does not clearly establish that fact. Nor does petitioner's reliance on 9 N.Y.C.C.R. § 2507.2 support its argument, because that regulation is, by its plain language, permissive. Finally, petitioner offers no viable legal basis for its arguments against allowing the landlord to increase the rent 90 days after a proper lease offer or in favor of requiring the landlord to amend the registrations to add the term "Deep Rent Skewed Unit." Nor does petitioner demonstrate that those portions of the PAR order addressed to those issues are arbitrary or capricious. Accordingly, itis hereby: ORDERED and ADJUDGED that the petition is GRANTED IN PART to the extent that respondent's October 11, 2022 PAR order (Administrative Review Docket No. KR210019RT) is VACATED only to the extent that it failed to properly apply 9 N.Y.C.R.R. § 2523.5(c)(l) and require the landlord to offer petitioner a lease with rent increases no higher than permitted under Rent Guidelines Board Order Rent Increase Order #52 in effect on May 1, 2021, when petitioner shouldhavebeen offered a lease; and it is further ORDERED thatthematteris remitted to DHCRfor further determinationconsistentwith this Decision and Order; and itis further ORDERED andADJUDGED that the petition is DENIED in all other respects, without prejudice to petitionerfiling an administrative rent overcharge complaintto DHCR; and it is further

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### [* 4]NYSCEF DOC. NO. 51 INDEX NO. 451213/2023 RECEIVED NYSCEF: 09/04/2024 ORDERED that, within 20 days from entry of this order, respondent shall serve a copy of this order with notice of entry on petitioner and upon the Clerk of the General Clerk's Office (60 Centre Street, Room 119); and it is further ORDERED that service upon the Clerk shall bemade in accordance with the procedures set forth in the Protocol on Courthouse and County Clerk Procedures for Electronically Filed Cases (Revised August 15, 2019). 1 ORDERED that any requested reliefnot expressly granted herein is denied; and it is further ORDERED thattheClerk shallmarkMotion Sequence 1 decided in all courtrecords; and it is further ORDERED thatthe Clerk shallmark this proceeding disposed in all courtrecords. This constitutes the decision, order, andjudgmentof the Court.

September4, 2024 DATE CHECK ONE: CROSS-MOTION (SEQ 3): CHECK IF APPROPRIATE: CASE DISPOSED

### ~ NON-FINAL DISPOSITION GRANTED**□** DENIED X GRANTED IN PART SETTLE ORDER SUBMIT ORDER INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT 

# D OTHER STAY CASE REFERENCE

1 The protocols are available at https://www.nycourts.gov/LegacyPDFS/courts/ljd/supctmanh/Efil-protocol.pdf. 451213/2023 Kypris Livermen v. Woody Pascal Mot. Seq. No. 3
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