| Matter of Chatsworth Realty Corp. v New York State Div. of Hous. &Community Renewal |
| 2008 NY Slip Op 09262 [56 AD3d 371] |
| November 25, 2008 |
| Appellate Division, First Department |
| In the Matter of Chatsworth Realty Corp.,Appellant, v New York State Division of Housing and Community Renewal,Respondent, and Theresa Darwish, Intervenor-Respondent. |
—[*1] Gary R. Connor, New York (Mark L. Tyler of counsel), for respondent. Himmelstein, McConnell, Gribben, Donoghue & Joseph, New York (William Gribben ofcounsel), for intervenor-respondent.
Order and judgment (one paper), Supreme Court, New York County (Herman Cahn, J.),entered November 13, 2007, which denied petitioner landlord's application brought pursuant toCPLR article 78 to annul the determination of respondent Division of Housing and CommunityRenewal (DHCR), dated March 7, 2006, denying the landlord's petition for administrative review(PAR) of the denial of its application to deregulate the subject apartment under the luxurydecontrol law, and dismissed the proceeding, unanimously affirmed, without costs.
DHCR's determination, in this matter where the landlord sought to deregulate respondenttenant's apartment on the basis that her estranged husband completed an income certificationform (ICF) stating that the annual household income for the subject apartment for the years 1994and 1995 exceeded $250,000, was rationally based (see e.g. Matter of Plaza Mgt. Co. v CityRent Agency, 48 AD2d 129, 131 [1975], affd 37 NY2d 837 [1975]). The record,including, inter alia, an affidavit from the husband, establishes that the husband, who was servedwith the ICF in April 1996, had vacated the apartment in the spring of 1995, and thus, his incomeshould not have been considered in the calculation of the total household income (see Matterof A.J. Clarke Real Estate Corp. v New York State Div. of Hous. & Community Renewal,307 AD2d 841 [2003]; see also Matterof Doyle v Calogero, 52 AD3d 252, 252-253 [2008]). The determination was alsorationally based on the independent ground that the New York State Department of Taxation andFinance was unable to ascertain whether the income threshold for the subject apartment had beenmet (see Rent Stabilization Code [9 NYCRR] § 2531.5)
Contrary to the landlord's contention, the doctrine of inconsistent positions, which precludesa party from assuming a position in a legal proceeding that is contrary to a position that wastaken in a prior proceeding (see e.g. Ford Motor Credit Co. v Colonial Funding Corp.,215 [*2]AD2d 435, 436 [1995]), is inapplicable. Although thehusband stated that he was a tenant in the subject apartment when he completed the ICF and thentook a different position in the PAR, he was not a party to the PAR, and thus, the position takenby him cannot serve as grounds for estoppel, particularly where to do so would adversely affect aparty's rights. The doctrine is also inapplicable inasmuch as the husband did not secure a benefitfrom his completion of the ICF (see e.g.Angel v Bank of Tokyo-Mitsubishi, Ltd., 39 AD3d 368, 371 [2007]; Matter of Bianchi v New York State Div.of Hous. & Community Renewal, 5 AD3d 303, 304 [2004], lv denied 3 NY3d601 [2004]).
We have considered the landlord's remaining arguments and find them unavailing.Concur—Lippman, P.J., Gonzalez, Moskowitz, Acosta and Renwick, JJ.