71st St. Props. LLC v New York State Div. of Hous. &

Community Renewal

2024 NY Slip Op 30286(U)

January 23, 2024

Supreme Court, New York County

Docket Number: Index No. 158627/2023

Judge: Judy H. Kim

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.
158627/2023 71ST STREET PROPERTIES LLC vs. NEW YORK STATE DIVISION OF HOUSING 

AND COMMUNITY RENEWAL ET AL

Motion No. 001

Page 1 of 4

The following e-filed documents, listed by NYSCEF document number (Motion 001) 2, 12, 13, 14, 15, 16

were read on this motion for ARTICLE 78 (BODY OR OFFICER) .

In this Article 78 proceeding, petitioner 71st Street Properties, LLC seeks an order, by way 

of mandamus, directing respondent the New York State Division of Housing and Community 

Renewal (“DHCR”) to issue a final determination on petitioner’s application to evict respondent 

Stacey McCosky—the only tenant remaining in the building owned by petitioner at 1343 Second 

Avenue, New York, New York (the “Building”)—from the Building within thirty days. For the 

reasons set forth below, petitioner’s motion is denied and this proceeding is dismissed. 

On April 29, 2020, petitioner filed an application with the New York City Department of 

Buildings (“DOB”) to demolish the Building, which was approved on March 2, 2021 (NYSCEF 

Doc. No. 1 [Petition at ¶¶10-12]). 

On September 22, 2022, pursuant to Rent Stabilization Code §2524.5(a)(2), petitioner filed 

another application with DHCR for approval to refuse to renew McCosky’s rent-stabilized lease

on the grounds of demolition (Id. at ¶¶5, 13, 26). On October 7, 2022, DHCR informed petitioner 

that this application did not meet the “requirements for docketing” as it was not “accompanied by 

SUPREME COURT OF THE STATE OF NEW YORK

NEW YORK COUNTY

PRESENT: HON. JUDY H. KIM PART 04

Justice 

---------------------------------------------------------------------------------X INDEX NO. 158627/2023

 MOTION DATE 08/30/2023

 MOTION SEQ. NO. 001

DECISION + ORDER ON 

MOTION

71ST STREET PROPERTIES LLC,

 Petitioner, 

- v -

NEW YORK STATE DIVISION OF HOUSING AND 

COMMUNITY RENEWAL, STACEY MCCOSKY,

 Respondents. 

---------------------------------------------------------------------------------X

INDEX NO. 158627/2023

NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 01/23/2024

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158627/2023 71ST STREET PROPERTIES LLC vs. NEW YORK STATE DIVISION OF HOUSING 

AND COMMUNITY RENEWAL ET AL

Motion No. 001

Page 2 of 4

architectural plans for the project approved by the DOB, and proof of financial ability to complete 

the project” (NYSCEF Doc. No. 6). On November 29, 2022, petitioner informed DHCR that the 

material sought had already been included with petitioner’s initial application (NYSCEF Doc. No. 

1 [Petition at ¶18). On December 9, 2022, DHCR assigned petitioner’s application to Docket 

Number KW410004OE (Id. at ¶20). 

On May 17, 2023, DHCR again requested that petitioner provide architectural plans 

approved by the DOB and proof of financial ability to undertake the demolition (Id. at ¶21) which 

petitioner provided on June 19, 2023 (Id. at ¶22). To date, DHCR has not issued a final 

determination on petitioner’s application. 

On August 30, 2023, petitioner commenced this proceeding, arguing that it has been 

prejudiced by DHCR’s delay in processing petitioner’s application since it cannot undergo the 

Building’s demolition and subsequent redevelopment until McCosky is evicted (Id. at ¶33). 

DHCR opposes petitioner’s motion, arguing that petitioner is not entitled to mandamus relief 

because the DHCR has actively processed petitioner’s application and a determination as to the 

merits of petitioner’s application is a discretionary, rather than ministerial, act. Respondent further 

asserts that petitioner’s application is complex and requires a thorough review and potential 

evidentiary hearing to ensure due process is afforded to those at risk of eviction. 

DISCUSSION

“Article 78 is the codification of the common-law writs, including a writ of mandamus to 

compel. Mandamus to compel is a judicial command to an officer or body to perform a specified

ministerial act that is required by law to be performed. It does not lie to enforce a duty that

is discretionary” (Alliance to End Chickens as Kaporos v NY City Police Dept., 152 AD3d 113,

117 [1st Dept 2017] [internal citations omitted]; see also CPLR §7803[1]). As a general matter, 

INDEX NO. 158627/2023

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158627/2023 71ST STREET PROPERTIES LLC vs. NEW YORK STATE DIVISION OF HOUSING 

AND COMMUNITY RENEWAL ET AL

Motion No. 001

Page 3 of 4

“DHCR’s decision regarding whether or not to grant petitioner’s application to terminate the

tenancy of its tenants so petitioner may proceed with the demolition/renovation of its building is a

discretionary matter” for which mandamus relief does not lie (Matter of 81 Warren St. Realty

Corp. v New York State Div. of Hous. & Community Renewal, 2008 NY Slip Op 31030[U], *5

[Sup Ct, NY County 2008]).

Although petitioner seeks an order directing DHCR to address petitioner’s pending

application within a set timeframe (rather than directing DHCR to grant its application), mandamus 

is still inappropriate. “In light to its numerous other duties involving administration of the rent 

laws, the internal allocation of DHCR’s resources is necessarily discretionary and not strictly 

ministerial in nature” (Audubon Ave. Assoc. v State Div. of Hous. & Community Renewal, etc.,

148 Misc 2d 831, 833 [Sup Ct, NY County 1990]). While “[t]his court is mindful of petitioner’s 

frustration occasioned by the delay in processing his application ... the legislature which 

empowers DHCR has not imposed any time limitations on its decision-making process” and, “[a]s 

our appellate courts repeatedly remind us, an administrative agency is entitled to great deference 

in matters within its authority and area of expertise” (In re 81 Warren St. Ry Corp. v New York, 

2008 NY Slip Op 31030[U] [Sup Ct, New York County 2008] citing Academic Health 

Professionals Insurance Association v. M.Q. of New York, Inc., 30 AD3d 165 [1st Dept 2006]).

In short, “[w]hile DHCR is not proceeding with the processing of petitioner’s application as 

expeditiously as petitioner expects, it is clear that DHCR is fulfilling its duty and processing the 

application” (Id.). Accordingly, it is not appropriate for this Court to “direct DHCR to render a 

decision on the instant matter within a specified period of time” (Id.).

INDEX NO. 158627/2023

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158627/2023 71ST STREET PROPERTIES LLC vs. NEW YORK STATE DIVISION OF HOUSING 

AND COMMUNITY RENEWAL ET AL

Motion No. 001

Page 4 of 4

In light of the foregoing, it is 

ORDERED and ADJUDGED that the petition is denied and this proceeding is dismissed. 

This constitutes the decision and order of the Court.

1/23/2024

DATE HON. JUDY H. KIM, J.S.C.

CHECK ONE: X CASE DISPOSED NON-FINAL DISPOSITION

GRANTED X DENIED GRANTED IN PART OTHER

APPLICATION: SETTLE ORDER SUBMIT ORDER

CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE

INDEX NO. 158627/2023

NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 01/23/2024

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