| Matter of Smith v Donovan |
| 2009 NY Slip Op 02885 [61 AD3d 505] |
| April 16, 2009 |
| Appellate Division, First Department |
| In the Matter of James Smith et al., Respondents, v ShaunDonovan, as Commissioner of the Department of Housing Preservation and Development,Appellant. |
—[*1] Steven Banks, The Legal Aid Society, New York (Ellen B. Davidson of counsel), forrespondents.
Order and judgment (one paper), Supreme Court, New York County (Paul G. Feinman, J.),entered May 6, 2008, which granted a CPLR article 78 petition to annul respondent Departmentof Housing Preservation and Development's (HPD) denial of relocation assistance to petitioners,directed HPD to provide petitioners with any relocation services it would ordinarily provide to arelocatee as defined in 28 RCNY 18-01 (a), and declared that tenants in buildings subject toorders to vacate are entitled to relocation services from HPD pursuant to Administrative Code ofthe City of NY § 26-301 whether or not the dwelling units that are subject to the vacateorders are lawful, unanimously affirmed, without costs.
The 12 petitioners occupied shared rooms in a two-story multiple dwelling located in theBronx. The building contains apartments on the first and second floors, each of which has fourbedrooms, a kitchen, bathroom, and living room. In addition, the basement was converted into anapartment with two rooms, a kitchen, and a bathroom.
Petitioners moved into the building at various times between April 2007 and December2007. They were told that the building was operated under the name "AJ Family House" as a"three-quarter house," which had a drug- and alcohol-free environment and imposed an 11:00p.m. curfew. It is uncontested that all of petitioners paid rent and entered into their rentalagreements with a woman who allegedly leased the building from the owners. Petitioners allbelieved that the facility was a legal residence.
All the petitioners, save one, stayed in rooms on the first and second floors which werefurnished with bunk beds that could sleep four to six men; the kitchen and bath facilities wereshared by 11 to 16 men. Petitioners state that the house was drug and alcohol free, and that theroommates cooked together, shared responsibility for cleaning, studied Bible, and watchedvideos. They received their state and federal benefits there, kept personal possessions there, andreceived mail there.
In December 2007, the leaseholder commenced a proceeding against the owners in the [*2]Housing Part of the New York City Civil Court in Bronx County.Subsequently, an HPD inspector was sent to inspect the building. On December 26, 2007, theHPD inspector found six class B violations, including illegal conversion to a multiple dwelling,and directed that the premises be restored to lawful occupancy.
On January 3, 2008, HPD issued a vacate order to the owners, lessees and occupants of thebuilding. The vacate order charged that the dwelling had conditions rendering it dangerous to lifeand unfit for human habitation, including an illegal apartment created in the basement and illegalrooming units and/or single room occupancies on the first and second floors. HPD directed theowner to provide an adequate supply of heat, seal up accessible openings in the cellar apartment,and to legalize the conversion from a private dwelling to multiple dwelling use, if legallyfeasible, or else restore to lawful occupancy. HPD also directed a fire watch for the entirebuilding.
On January 17, 2008 petitioners contacted HPD and requested that it provide them withrelocation assistance pursuant to Administrative Code § 26-301 (1). The statute providesthat the Commissioner of HPD has a duty to provide relocation services to certain tenants. Itfurther provides:
"1. The commissioner of housing preservation and development shall have the power and itshall be his or her duty:
"(a) To provide and maintain tenant relocation services . . .
"(v) for tenants of any privately owned building where the displacement of such tenantsresults from the enforcement of any law, regulation, order or requirement pertaining to themaintenance or operation of such building or the health, safety and welfare of its occupants."(Administrative Code § 26-301 [1] [a] [v].)
Rules promulgated by HPD define "relocatee" as: "[A]n individual . . .deprived of a permanent residence rented by him/her or them in the City of New York as a directresult of the enforcement of a Vacate Order" (28 RCNY 18-01 [a]).
On January 23, 2008, after HPD refused the request on the ground that petitioners'occupancy was "illegal," petitioners commenced this article 78 proceeding by order to showcause. Petitioners sought a judgment (1) granting a writ of mandamus, pursuant to CPLR 7801,directing HPD to provide relocation assistance, and (2) declaring that tenants in privately ownedbuildings subject to a vacate order are entitled to relocation services, pursuant to AdministrativeCode § 26-301, regardless of whether the dwelling units subject to the vacate order arelawful.
By decision, order and judgment dated April 30, 2008, Supreme Court granted the petitionand annulled HPD's decision to deny relocation assistance to petitioners. The court remitted thematter to HPD with directions "forthwith to provide [p]etitioners with any and all services andassistance it would ordinarily afford a relocatee as defined in section 18-01 (a) of the Rules ofthe City of New York." The court declared that "tenants in buildings subject to orders to vacateare entitled to relocation services by the Respondent [HPD], pursuant to section 26-301 of theAdministrative Code, whether or not the dwelling units which are subject to the order of vacateare lawful."
On appeal, HPD argues that Administrative Code § 26-301 (1) only requires HPD tooffer temporary relocation services "to an individual occupying a lawfully configured dwellingunit as [*3]his/her permanent residence," and that "illegal andhazardously configured dwelling units in violation of the Building Code and Multiple DwellingLaw cannot create a true and actual tenancy." In support of its argument, respondent relies on theaffidavit of Associate Commissioner for Enforcement Services, who asserts, inter alia, that theterm "tenant," as used in the Administrative Code, "connotes a person residing in a lawfullyconfigured dwelling unit occupied as his/her permanent residence with the consent of theowner." Based on that connotation, the commissioner argues that it is "HPD's policy to providerelocation services only to individuals vacated from lawfully configured residential unitsotherwise rendered inhabitable [sic] and/or unsafe due to fire, flood, structural problemor other disaster."
Petitioners assert that Supreme Court correctly determined that they meet the unambiguousrequirements of the Administrative Code for receipt of relocation assistance in that they paidmonthly rent to reside in a privately-owned building and are being displaced as a result of avacate order. Moreover, petitioners maintain that the broad language of section 26-301 in no waylimits the definition of "tenants" entitled to relocation assistance to persons who live in lawfullyconfigured residences. They further assert that respondent's interpretation of AdministrativeCode § 26-301 (1) ignores the legislative intent behind the statute, which is to providerelocation assistance to tenants who lose their housing through no fault of their own.
For the reasons set forth below, we find that Supreme Court properly concluded that tenantsin buildings subject to orders to vacate are entitled to relocation services by HPD, pursuant toAdministrative Code § 26-301 (1), regardless of whether the dwelling units which aresubject to the vacate orders are lawful.
The fundamental rule of statutory interpretation is that a court "should attempt to effectuatethe intent of the Legislature" (Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d577, 583 [1998] [internal quotation marks and citations omitted]). Since "the clearest indicator oflegislative intent is the statutory text, the starting point in any case of interpretation must alwaysbe the language itself, giving effect to the plain meaning thereof" (id.). Further, "it is awell-established rule that resort must be had to the natural signification of the words employed,and if they have a definite meaning, which involves no absurdity or contradiction, there is noroom for construction and courts have no right to add to or take away from that meaning"(id. [internal quotation marks and citations omitted]). " '[N]ew language cannot beimported into a statute to give it a meaning not otherwise found therein' " (Matter ofChemical Specialties Mfrs. Assn. v Jorling, 85 NY2d 382, 394 [1995], quoting McKinney'sCons Laws of NY, Book 1, Statutes § 94, at 190).
It is well settled that an agency's interpretation of a statute that it is charged withadministering is entitled to deference if it is not irrational or unreasonable (Seittelman vSabol, 91 NY2d 618, 625 [1998]; Matter of Howard v Wyman, 28 NY2d 434, 438[1971]). However, where "the question is one of pure statutory reading and analysis, dependentonly on accurate apprehension of legislative intent, there is little basis to rely on any specialcompetence or expertise of the administrative agency" (Kurcsics v Merchants Mut. Ins.Co., 49 NY2d 451, 459 [1980]). "In such a case, courts are 'free to ascertain the properinterpretation from the statutory language and legislative intent' " (Seittelman, 91 NY2dat 625, quoting Matter of Gruber [New York City Dept. of Personnel—Sweeney],89 NY2d 225, 231-232 [1996]).
Applying these rules, we find that HPD's interpretation of Administrative Code §26-301 (1) is contrary to the plain meaning of the statute. Section 26-301 requires HPD toprovide [*4]relocation services to any tenant displaced as theresult of "enforcement of any law, regulation, order or requirement pertaining to themaint[e]nance or operation of such building or the health, safety and welfare of its occupants"(subd [1] [a] [v] [emphasis added]). HPD's interpretation creates a broad exception to theapplicability of the statute, by excluding all persons displaced as a result of vacate orders thatenforce the law requiring an owner to obtain a certificate of occupancy for conversion of aprivate dwelling to multiple dwelling use (Multiple Dwelling Law §§ 301, 302).HPD asserts that its policy is also to limit relocation assistance to situations in which a vacateorder is issued following some "disaster," such as flood or fire, which further limits the plainlanguage of the statute. However, an administrative policy that "graft[s]" onto the statute anaddendum that excludes only certain tenants and vacate orders violates the plain meaningdoctrine (see Matter of Raritan Dev. Corp. v Silva, 91 NY2d 98, 104-105, 107 [1997][declining to enforce agency's interpretation which grafted exception onto zoning resolution]).
Furthermore, in Matter of Cupidon v Donovan (8 Misc 3d 1024[A], 2005 NY SlipOp 51263[U] [2005]), HPD argued, as it does here, that the petitioner could not be deemed apermanent resident under Administrative Code § 26-301 (1) and section 18-01 of theRules of the City of New York because he would be subject to vacatur at any time because hisoccupancy of the unit violated the law.[FN*]The Cupidon court flatly rejected HPD's interpretation as negating the plain language ofthe statute and regulation as well as the clear intent to provide location assistance to tenants wholose their housing through no fault of their own (2005 NY Slip Op 51263[U], *3, citingMatter of Goodwin v Gleidman, 119 Misc 2d 538, 549 [1983]).
Moreover, we reject HPD's argument that it is not creating an exception, but is simplyinterpreting the term "tenant," which it asserts cannot include persons who rent space in anillegal multiple dwelling. HPD repeatedly states, without citation of any legal authority, that alegal tenancy cannot be created in an illegal multiple dwelling because occupancy of anapartment lacking a valid certificate of occupancy is prohibited (Multiple Dwelling Law §301), and the landlord cannot recover rent for occupancy of such unit (Multiple Dwelling Law§ 302 [1] [b]).
To the extent the term "tenant" is ambiguous, courts may look to statutory definitions as anaid to interpretation and should interpret (see Jericho Water Dist. v One Call Users Council, Inc. 10 NY3d385, 390-391 [2008] [referring to definitions of "municipality" in different statutes to aidinterpretation]), and consider any well-defined technical or common-law meaning (McKinney'sCons Laws of NY, Book 1, Statutes § 233). Administrative Code § 26-301 (1) doesnot define "tenant," but definitions in the New York City Rent and Rehabilitation Law and in thestate Real Property Actions and Proceedings Law do not make the issuance of a certificate ofoccupancy a prerequisite to the creation of a tenancy (see Administrative Code §26-403 [m] [tenant is a "tenant, subtenant, lessee, sublessee, or other person entitled to thepossession or to the use or occupancy of any housing accommodation"]; [*5]RPAPL 711 ["tenant" includes "an occupant of one or more roomsin a rooming house"]). Petitioners are tenants under these definitions since they paid rent andwere entitled to possess or use rooms in the housing accommodation.
Further, HPD's argument that a person cannot be a "tenant" of an apartment that is not incompliance with Multiple Dwelling Law §§ 301 and 302 is unsupported by caselaw. In Sima Realty v Philips (282 AD2d 394 [2001]), we rejected a similar argument bya landlord seeking to rely on the absence of a certificate of occupancy to eject a tenant. Indetermining that there was no merit to the landlord's contention that the occupants should beejected because the premises did not have a residential certificate of occupancy we stated: "[themultiple occupancy] law was enacted to protect tenants of multiple dwellings against unsafeliving conditions, not to provide a vehicle for landlords to evict tenants on the ground thatpremises are unsafe" (id. at 395; see also Zane v Kellner, 240 AD2d 208 [1997]).Similarly, we find that HPD cannot rely solely on the fact that petitioners lived in a dwelling unitthat was not in compliance with the Multiple Dwelling Law as a vehicle to deny them relocationservices.
To the extent HPD argues on appeal a different or alternative rationale for denyingrelocation services, we are constrained to review only the grounds it invoked in denyingpetitioners' request for such services (see Matter of Trump-Equitable Fifth Ave. Co. vGliedman, 57 NY2d 588, 593 [1982]). Concur—Gonzalez, P.J., Mazzarelli, Friedman,Catterson and Renwick, JJ.
Footnote *: As a general matter, it ispresumed "that the government will abide by court rulings in future cases involving similarlysituated petitioners, under principles of stare decisis" (Jamie B. v Hernandez, 274 AD2d335, 336 [2000]). Here, HPD baldly asserted in its verified answer that it was "not bound" by theunappealed ruling in Cupidon and on appeal, it makes no effort to distinguish the casedespite the fact that it is directly on point.