| Matter of Casado v Markus |
| 2010 NY Slip Op 05470 [74 AD3d 632] |
| June 22, 2010 |
| Appellate Division, First Department |
| In the Matter of Mercedes Casado et al.,Respondents, v Marvin Markus, as Chair of the New York City Rent Guidelines Board,et al., Appellants. |
—[*1] Steven Banks, The Legal Aid Society, New York (Ellen Davidson of counsel), forrespondents. Rosenberg & Estis, P.C., New York (Jeffrey Turkel of counsel), for Rent StabilizationAssociation of NYC, Inc. and Community Housing Improvement Program, Inc., Amici Curiae. Elizabeth R. Fine, New York (Lauren G. Alexrod of counsel), for The Council of the City ofNew York, Amicus Curiae.
Judgment, Supreme Court, New York County (Emily Jane Goodman, J.), entered February2, 2010, in an article 78 proceeding, vacating Rent Guidelines Board orders No. 40 of 2008 and41 of 2009 insofar as they provided for minimum dollar rent increases for rent stabilizedapartments renting for less than $1,000 that had not been subject to vacancy increases for thepreceding six years, unanimously affirmed, without costs.
Under the Emergency Tenant Protection Act of 1974 (ETPA) (McKinney's UnconsolidatedLaws of NY § 8621 et seq. [L 1974, ch 576, sec 4]), the Council of the City ofNew York is empowered to regulate the rents of housing accommodations subject to the NewYork City Rent Stabilization Law (Administrative Code of City of NY § 26-501 etseq.). The New York City Rent Guidelines Board was created pursuant to that statutoryauthority and, under Rent Stabilization Law § 26-510 (b) (tracking ETPA § 4[McKinney's Uncons Laws of NY § 8624 (b)]), is authorized to annually adjust the"maximum rate or rates of rent" for rent stabilized units. In so doing, the Rent Guidelines Boardis necessarily subordinate to the City Council, which is vested by the State with the exclusivepower to promulgate local rent regulations. Although the City Council has the power to establishclassifications of housing accommodations, and, if deemed necessary, to thereby allow fordifferentiations of rental treatment, it has not done so. It does not follow, however, that the RentGuidelines Board may, in effect, step into the breach, without express statutory authority ordelegation by the City [*2]Council. By imposing minimum dollarrent adjustments based on tenant longevity and rental amount, the Rent Guidelines Board notonly went beyond its authority to set maximum rent rates, but also impermissibly createda new class of rental accommodation, a policy determination exclusively reserved to the CityCouncil (see ETPA § 3 [a] [McKinney's Uncons Laws of NY § 8623 [a]; Matter of New York State Tenants &Neighbors Coalition, Inc. v Nassau County Rent Guidelines Bd., 53 AD3d 550 [2d Dept2008]). Concur—Gonzalez, P.J., Andrias, Catterson, Renwick and Manzanet-Daniels, JJ.[Prior Case History: 27 Misc 3d 340.]