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A architecture buyer commenced a CPLR Article 78 proceeding to analysis a New York City Attic Lath order, which denied reconsideration of a above-mentioned Attic Lath order. The attic lath appealed from a balloon cloister adjustment and acumen which accepted the abode and annulled the two above-mentioned lath orders.



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The buyer had been “operating a decay auctioning bulb on the aboriginal floor” of the accountable building. The respondents are residential tenants in the building. In about March 2014, the tenants filed applications for advantage beneath Article 7-C of the Assorted Abode Law (MDL), with the Attic Board. The buyer adjoin the applications, arguing that the “hazardous operation was adverse with residentiary use.”



The parties thereafter adjourned a adjustment acceding which “purported to admittance the tenants to abide in the architecture as hire counterbalanced tenants in the absence of a residential affidavit of occupancy” (C of O). Pursuant to the agreement, the buyer agreed to and had “shut bottomward the cardboard decay auctioning plant.” The buyer additionally accepted several concessions to the tenants, including “immediately registering all of the apartments with the” NYS Div. of Housing and Community Renewal (DHCR), “to access actual hire stabilization status, which contrarily would accept occurred already the tenants were accepted Attic Law coverage.” The Appellate Division, Second Dep’t (court) acclaimed that “[v]irtually all of the concessions accepted by the buyer to the tenants would be appropriate to access a (C of O) and catechumen the acreage into hire counterbalanced residences.” Thereafter, the tenants “sought to abjure their advantage applications with ageism and fabricated such requests to the Attic Board.”



By an adjustment anachronous Feb. 12, 2015, the attic lath alone the tenants’ proposed “withdrawal of their advantage applications on the base that their connected abode in the architecture and in the absence of a residential (C of O) was actionable and adjoin accessible policy.” The lath referred the advantage applications to the Office of Administrative Trials and Hearings (OATH) for adjudication. The buyer approved reconsideration of the board’s determination. The lath denied the owner’s appliance for reconsideration in July 2015. The buyer again commenced the accountable Art. 78 proceeding, “seeking to abate the Attic Board’s orders.” The balloon cloister had accepted the owner’s abode and annulled the two attic lath orders on the area that the board’s assurance lacked a “rational base and was approximate and capricious.”

The Appellate Division (court) captivated that the abode from the adjustment had to be dismissed, aback there was no “appeal as of appropriate from an average adjustment in a proceeding pursuant to CPLR Article 78… and any achievability of absolute abode accordingly assured with the access of the acumen in the proceeding….” The cloister acclaimed that the “issues aloft on abode from the adjustment are brought up for analysis and accept been brash on the abode from the judgment….”

The cloister explained that “[s]ection 301 of the (MDL) prohibits the control of a assorted abode in accomplished or in allotment until the arising of a residential affidavit of occupancy…. The Attic Law… provides an barring thereto by allowing residential use in acting assorted dwellings above-mentioned to the arising of a residential affidavit of occupancy…. ‘Until the Legislature allowable the Attic Law… the residential control of lofts was actionable authentic and simple: The tenants had no appropriate to be there, and the landlords had no appropriate to aggregate rent….’ The Attic Law is brash to accommodate ‘uncertain and able residential units, adapted from bartering use, into the hire stabilization arrangement in a abode which ensures acquiescence with the (MDL) and assorted architecture codes….’ The Attic Law was created to adapt the about-face of industrial, manufacturing, and bartering amplitude into residential space. It enables an buyer to hire amplitude in a architecture while the anatomy is ability about-face pursuant to architecture department, blaze department, and added authoritative requirements all-important to access a (C of O) for a residential building. The assignment all-important to approve a architecture for residential use is accountable to accurately assigned time periods…, and the attic lath is accurately answerable with free acting assorted abode cachet and added issues of coverage, including advantage applications….”

The cloister opined that the balloon cloister should accept “confirmed the Attic Board’s assurance abnegation the tenants’ proposed abandonment of their advantage applications and remitted the advantage applications to the OATH for judication.” It articular that the lath “had administration over the advantage applications… and the advantage applications did not become arguable aloft the tenants’ proposed abandonment with ageism of the applications.” It acclaimed that Appellation 29 of the Rules of the City of New York “provides that the Attic Lath may analysis adjustment agreements and exercise acumen to adios a proposed adjustment and abode affairs for added analysis and adjudication…. There is annihilation in the aphorism that banned the Attic Board’s analysis of adjustment agreements or its ascendancy to re-open and abode a advantage application.”

The cloister added declared that accustomed the “particular affairs of this matter, allotment of the architecture and the units at affair with the DHCR was bereft to accreditation adjournment of the advantage applications.” It additionally declared that the Attic Law was the “sole agency by which the tenants could accurately abide in the architecture afore the buyer obtains a residential (C of O)… and there is no impediment to the Attic Law and the Hire Stabilization Law applying simultaneously….”

The cloister begin that the attic lath had “rationally alone the tenants’ proposed abandonment of their advantage appliance on the base that those portions of the…(agreement) which appropriate the tenants to abjure their advantage applications abandoned the Attic Law and were adjoin accessible policy.” The acceding “purported to bolster an illegality, because the tenants would abide in the architecture afterwards Attic Law advantage in contravention of (MDL §301).” Moreover, the tenants “proposed abandonment had the aftereffect of waiving their Attic Law advantage claims and assiduity an actionable control with the inherent risks to the accepted accessible that the Attic Law was brash to address.”

The cloister additionally empiric that the Attic Law “is a authoritative residential authoritative arrangement that is not accountable to abandonment by the tenant….” However, the it begin that the attic board’s award “that the (agreement) in its absoluteness was unenforceable was afterwards a rational base and was approximate and capricious.” The lath “should accept accounted alone those accoutrement of the…(agreement) that appropriate the tenants to abjure their advantage applications to be unenforceable.”

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The cloister emphasized that acceding of adjustment are advantaged by courts and “not agilely casting aside.” Parties gluttonous to set abreast such a acceding charge appearance “good annual acceptable to invalidate a contract, such as fraud, overreaching, duress, or mistake….” Additionally, the (agreement) independent a “severability clause,” i.e., if any appellation or activity of the acceding was “determined to be abandoned or unenforceable, the butt of the agreement” was to “remain in abounding force and effect.” The cloister captivated that to annual the absolute acceding unenforceable “did not reflect the absorbed of the parties.”

Accordingly, the cloister captivated that the balloon cloister should accept accepted the attic board’s assurance abnegation the tenants’ “proposed abandonment of their advantage applications as adjoin accessible activity and remitting the advantage applications to the OATH for judication …, accepted the board’s assurance that genitalia of the…(agreement) which appropriate the tenants to abjure their advantage applications were unenforceable and…annulled so abundant of the Attic Board’s assurance as accounted unenforceable the actual portions of the…agreement.”

Matter of Dom Ben Realty Corp. v. New York City Attic Bd., Supreme Cloister of the State of New York, Appellate Division, 2nd Dept., Index No. 12548/15, absitively Nov. 13, 2019, Roman, J.P., Hinds-Radix, Maltese, LaSalle, JJ. All concur.

 

 

A freeholder commenced a holdover proceeding adjoin a acknowledging (niece) and a co-respondent (aunt), on the arena that the aunt did not renew her charter and the niece’s control is acquired of the aunt’s hire counterbalanced tenancy. The aunt no best maintains the accountable accommodation (apartment) as her primary residence. The cloister captivated a balloon on the assumption defense.

A architecture babysitter testified that he had apparent the respondents consistently “come and go in and out of the architecture from 2014 to 2017….” He recalled that the aunt had confused out of the accommodation in either 2016 or 2017. He had started seeing the niece “every day a few months afterwards he started alive in June or July 2014” and he had been abreast that the acknowledging was the aunt’s niece.

The niece testified that her aunt had lived in the accommodation for abounding years. She claimed that she had confused into the accommodation in “March 2014 because she capital to alpha a career in analogy and animation” and capital to alive with her aunt because, inter alia, the aunt was an artisan herself.

The accommodation had one bedroom. The niece asserted that she slept in the bedchamber and the aunt slept in the active room, area there was a bed. The niece testified that she confused her “belongings” into the accommodation in mid-2017. She declared that she came to the accommodation on Monday nights and backward through Tuesdays. She went to a abode on Long Island (Long Island house) on Wednesday mornings. She added asserted that her aunt acclimated the accommodation added frequently on weekends aback she spent time with the niece. They allegedly went to “the zoo, museums, movies, shopping, out to eat, or to the beach….”

The niece additionally testified that she had two coffer accounts, one which was alone chastening and the added was a collective annual with the aunt, which she had opened in March 2014 for use with annual to costs for the apartment, such as “rent, utilities, and groceries.” The niece testified that the aunt did not pay hire because of the aunt’s banking situation, but that they aggregate utilities and meal costs. She claimed that the aunt was like a “second mother aback her parents confused out of state” and that the aunt had provided “helpful advice with her art career.”

The niece additionally asserted that the aunt helped the niece “navigate the subway” and that amid January 2015 and January 2017, the respondents both slept in the accommodation 4 canicule a week. The niece declared that the aunt had confused out in June 2017 and into the Long Island house. She added declared that whenever the aunt came to New York, the aunt would acquaintance her, and they would try to get together. They batten to anniversary added “once a ages by phone” and they spent “Valentine’s Day, Mother’s Day, birthdays, and St. Patrick’s Day together” and additionally allegedly got calm for Christmas.

The niece accepted that neither she nor her aunt brash the freeholder that the aunt lived in the apartment. The niece additionally testified that her grandmother had died in 2013 in a nursing home two blocks from the Long Island house. The niece knew that the aunt spent best of her time with the niece’s grandmother afore the grandmother died. The niece accepted that the aunt “paid the mortgage and cable for the (Long Island house).” The niece additionally accepted that she and her aunt had “communicated with a advocate who specialized in landlord/tenant law about the time that (the niece) was cerebration about affective to New York and afterwards (the niece) confused into the (apartment)….”

The respondents had opened their collective annual “after appointment with the attorney.” The niece accustomed that she had apparent her aunt two times a year afore affective into the accommodation and a few times a year afterwards the aunt had confused out of the premises. The respondents did not vacation together. The niece had not confused “pets” from the Long Island abode to the accommodation afterwards the niece’s grandmother died. She added testified that the aunt would be at the Long Island abode on Monday mornings, would appear to the accommodation on Monday nights, would go to the Long Island abode during the day on Wednesdays, and would acknowledgment to the accommodation on Wednesday nights, and would go aback to the Long Island abode on Friday mornings. Bills from an beastly hospital had been beatific to the aunt at the Long Island abode in March, May, and August of 2015 and July 2016.

The niece’s uncle and aunt’s brother had commenced an activity adjoin the aunt in Nassau Supreme Court, gluttonous partition, alleging that the aunt endemic the Long Island abode as a tenant-in-common with the niece’s uncle. A adjustment of that case gave the aunt absolute use of the Long Island house. Accord apropos to the allotment activity had been addressed to the aunt at the Long Island abode and the aunt’s coffer statements for the months October 2013 through October 2016 were beatific to the Long Island house.

The aunt cited aborigine allotment documents, assuming that the aunt voted at the accommodation in 2014 and 2016. The aunt’s tax allotment active in 2016 for the years 2012, 2014, and 2015 listed the accommodation as the aunt’s abode and her tax acknowledgment for 2016 active in 2017, listed the Long Island abode as the aunt’s address. The aunt’s New York tax acknowledgment for 2016 declared that the aunt “did not advance active abode in New York City during 2016.” Tax forms, such as 1099’s or W-2’s for the aunt in 2015 and 2016 listed the accommodation as her address. Invoices for the aunt’s artwork listed the accommodation as her abode in 2014, 2015, 2016, and 2017.

The niece’s driver’s license, aborigine registration, board assignment summons, and assertive added abstracts showed her abode at the apartment. The niece additionally alien the aunt’s will, accomplished in June 2017, which larboard the aunt’s absolute acreage to the niece. Credit card, debit card, and ATM activity adumbrated that the aunt was generally present both in New York City and Long Island, and her time was “somewhat analogously divided.”

Further affidavit adumbrated that the niece spent time caring for her grandmother and the respondents spent four canicule a anniversary in New York and had spent Wednesdays and weekends on Long Island, “in allotment to augment the animals.” The aunt had acquired appellation to the Long Island abode by affairs out her uncle. She acclimated a about-face mortgage to armamentarium such acquirement and claimed that a mortgage agent insisted that the aunt change her abode on her tax allotment to annual the Long Island house.

The aunt testified that she did not appointment the niece in academy in Boston afore the niece had confused into the apartment, that the respondents did not biking together, that the niece’s grandmother lived in a nursing home two blocks from the Long Island abode for nine months afore the grandmother died, that the aunt gave the nursing home the Long Island abode as the aunt’s address, that the respondents opened the collective coffer annual afterwards consulting an attorney, and that the respondents had “no ability of advocate or bloom affliction proxies accomplished for one another.” The niece was not a adumbrative beneficiary of aunt’s amusing aegis income. The aunt explained that pets at the Long Island abode appropriate analysis by a veterinarian abreast the Long Island house. She could not accompany the pets to the accommodation and afterwards the niece’s grandmother died, the aunt spent the majority of her time at the Long Island house.

The cloister explained, inter alia, that “evidence of alike a abutting relationship, by itself, does not answer to appearance the affectionate of affecting charge that characterizes a non-traditional ancestors relationship.” The cloister opined that the best “glaring evidence” that the respondents lacked “an affecting charge and interdependence, was that respondents saw anniversary added alone two times a year afore (niece) confused into the (apartment) and, three years later, saw anniversary added alone a few times a year afterwards they represented that (the aunt) confused out of the (apartment).”

The cloister acclaimed that the respondents had “only talked on the buzz already a ages afterwards they testified that (the aunt) moved.” The cloister articular that a “lifetime accord of accidental claimed acquaintance that bookends the three-year break according to which respondents advance that they alive calm belies the affectionate of affecting charge and alternation respondents charge prove and along outweighs the probative amount of a collective coffer annual acclimated for bound purposes.” Alike if the respondents had accurate that they had a non-traditional relationship, they still had to prove that “both of them resided with anniversary added for two years above-mentioned to (aunt’s) abiding vacatur….”

The cloister accustomed that the aunt had relocated to Long Island to advice booty affliction of the grandmother and that “taking affliction of an ailing about does aggregate an excusable absence from a rent-stabilized accommodation for primary abode purposes.” However, afterward the grandmother’s passing, the aunt had maintained a affiliation with the Long Island house. She larboard her pets at the Long Island abode and spent about bisected of her time at the Long Island house. Rather than affairs the Long Island abode and bisect the gain with her siblings, all who endemic the Long Island abode as tenants-in-common, the aunt had “litigated adjoin the auction of the (Long Island house) so that she could alive at the (Long Island house).” She additionally filed her tax acknowledgment for 2016 and March 2017, application the Long Island abode as her address.

The cloister beheld such actuality as “probative” that the Long Island abode was her primary residence. She acclimated the about-face mortgage on Long Island abode to accomplish the adjustment which accustomed her to alive at the Long Island house. The aunt had additionally afflicted her “non-driver’s authorization to reflect the (Long Island house) as her abode in August of 2016.” The cloister additionally cited accord in the allotment activity which activated the Long Island address.

The cloister assured that the “level of affiliation (the aunt) maintained with the (Long Island house) pre-dating (niece’s) control of the (apartment) and continuing through and afterwards the resolution of the activity with (niece’s) uncle, is not constant with (the aunt’s) aliment of the (apartment) as a primary residence.” The cloister had added acclaimed that the “conduct of a hire counterbalanced addressee and a successor-claimant afterwards the addressee vacates can be probative of a non-traditional ancestors relationship.” Accordingly, the cloister awarded the freeholder a acumen of control adjoin the niece and the aunt.

92nd Street Venture v. Corbett, Civil Court, New York Co., Case No. 82509/2017, absitively November 6, 2019, Stoller, J.

  

Scott E. Mollen is a accomplice at Herrick, Feinstein.

 

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