| Matter of Porter v New York State Div. of Hous. & CommunityRenewal |
| 2008 NY Slip Op 04136 [51 AD3d 417] |
| May 1, 2008 |
| Appellate Division, First Department |
| In the Matter of Bruce Porter et al., Respondents, v NewYork State Division of Housing and Community Renewal, Respondent, and Duane Street Realty,LLC, Appellant. |
—[*1] Robert Petrucci, New York, for Bruce and Alida Porter, Donna Dennis, James Haughton,Ellen Pearson, John Devine, Nancy Barber and William Stone, respondents. Gary R. Connor, New York (Caroline M. Sullivan of counsel), for New York State Divisionof Housing and Community Renewal, respondent.
Order, Supreme Court, New York County (Eileen A. Rakower, J.), entered June 7, 2007,which, to the extent appealed from, granted the cross motion of respondent Division of Housingand Community Renewal (DHCR) for an order remitting the matter to itself for furtherconsideration, unanimously affirmed, without costs.
Rent Stabilization Code (9 NYCRR) § 2527.8 provides that "DHCR, on application ofeither party, or on its own initiative, and upon notice to all parties affected, may issue asuperseding order modifying or revoking any order issued by it under this or any previous Codewhere the DHCR finds that such order was the result of illegality, irregularity in vital matters orfraud." The Court of Appeals has confirmed DHCR's broad powers and authority to alter its priordeterminations on remission (see e.g. Matter of Yasser v McGoldrick, 306 NY 924[1954], affg 282 App Div 1056 [1953]; see also McKinney's Uncons Laws of NY§ 8608 [Local Emergency Housing Rent Control Act § 8, as added by L 1962, ch 21,§ 1, as amended]), and this Court has held that remission for further fact-finding anddetermination is appropriate where, as here, DHCR concedes an error in the issuance of itsdetermination (see Matter of Hakim v Division of Hous. & Community Renewal, 273AD2d 3 [2000], appeal dismissed 95 NY2d 887 [2000]), and where the determinationresulted from an "irregularity in vital matters" (see Matter of Sherwood 34 Assoc. v NewYork State Div. of Hous. & Community Renewal, 309 AD2d 529, 532 [2003]).
Here, DHCR has conceded that its review of several issues raised by the tenants wasinadequate, including whether the owner's plans constitute a demolition under the RentStabilization Law, whether certain protections of the Loft Law extend to these rent-stabilized[*2]tenancies, and whether the owner was obligated to timelyobtain a work permit or offer lease renewals prior to DHCR's determination of the instantdemolition application (see Hakim at 4; Matter of 47 Clinton St. Co. v New YorkState Div. of Hous. & Community Renewal, 161 AD2d 402, 403 [1990] [remission properwhere DHCR conceded that determination was made without benefit of complete necessarydocumentation of owner and full opposition by tenants]).
Moreover, DHCR's determination that the owner satisfied its requirement to show thefinancial ability to complete the demolition project by demonstrating it had a $5 million creditline reflects an irregularity, given DHCR's own finding that the owner had greatly underestimatedthe required relocation expenses. Accordingly, remission was appropriate (Sherwood 34Assoc. at 532; Matter of Alcoma Corp. v New York State Div. of Hous. & CommunityRenewal, 170 AD2d 324 [1991], affd 79 NY2d 834 [1992]).Concur—Mazzarelli, J.P., Saxe, Gonzalez and Acosta, JJ.