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, l isted 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 Build ing within thirty days. For the

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

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

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

Doc. No. 1 [Petition at ¶¶10

- 12]).

O n September 22, 2022

, pursuant to Rent Stabilization Code §2524.5(a)(2)

, p etitioner 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,

P etitioner

,

- v

-

NEW YORK STATE DIVISION OF HOUSING AND

COMMUNITY RENEWAL, STACEY MCCOSKY

,

Respondent s

.

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

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

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### [* 1]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 o n June 19, 2023 ( Id. at ¶22). To date, DHCR has not issue d a final

determination on petitioner ’ s application.

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

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 ent itled 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 applic ation 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 ci tations omitted]; see also CPLR §7803[1]). As a general matter

, INDEX NO. 158627/2023

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### [* 2]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 N ew Y ork State Div. of Hous. & Community Renewal

, 2008 NY Slip Op 31030[U], *5

[Sup Ct, NY County 2008] ).

Although p etition er seek s 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 in appropriate. “ I n 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 g reat 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, i t 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

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

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### [* 3]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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