Opinion
109504/10.
August 31, 2010.
DECISION/ORDER
MEMORANDUM DECISION
In this Article 78 proceeding against the New York State Department of Housing and Community Renewal ("DHCR") and R M Realty Company a/k/a R M Realty ("RM"), petitioner, Margaret Kane ("petitioner") seeks an order correcting the name of the landlord/owner on an amended DHCR rent overcharge order, dated April 3, 1987 and certified on August 18, 1993 (the "amended overcharge order"), to include the word "Company" so as to permit petitioner to convert such order to an enforceable judgment.
Petitioner seeks an order pursuant to CPLR 7803:
1. Determining that substituting the complete name of the Landlord-Owner "R M REALTY COMPANY" for the incomplete name of "R M REALTY" in the Amended Order issued by the DHCR, dated April 3, 1987 and certified on August 18, 1993 (Exhibit 1), is a ministerial act that does not affect the rights of any of the parties in the underlying proceeding, and the refusal to correct the name is arbitrary and capricious, or alternatively, an abuse of discretion, and the Court after making this determination, issuing an Order directing the DHCR to correct its Order accordingly and forthwith, and further directing the Clerk of the Court to thereafter convert the DHCR Order to a Judgment after Petitioner presents to the Clerk a certified copy of the corrected DHCR Order and certification by DHCR that more than sixty days have elapsed since the issuance of the original DHCR Order and the Respondent R M REALTY COMPANY failed to commence an Article 78 Proceeding to challenge the DHCR Order; and
2. Determining that upon converting the Order to a Judgment that the Statute of Limitations shall be deemed to run for 20 years from its entry under CPLR 211 (b), or, alternatively, the Court shall "deem" the Order "renewed" comparable to a renewal Judgment under CPLR 5014, and upon converting the Order to a Judgment, the Statute of Limitations period shall also be deemed to run 20 years from the date of its entry. . . .
It is undisputed that DHCR issued an overcharge order in favor of petitioner and against "Gershon Realty" as the landlord/owner on April 3, 1987. The record indicates that within 30 days thereafter, RM filed a Petition for Administrative Review ("PAR"), dated May 8, 1987, which was dismissed by Order dated December 18, 1990.
In February 1993, petitioner requested that DHCR correct the name of landlord/owner from Gershon Realty to "RM Realty Company." DHCR amended its order "to correct the owners [sic] name of the subject premise," to name "R M Realty" as the owner. It is uncontested that "Company" was erroneously omitted from the amended order. The amended order also stated: "This order supercedes the previous order issued on April 3, 1987. However, such issue date remins [sic] in fullforce [sic] and effect."
According to petitioner, in attempting to convert the amended overcharge order to a judgment, she obtained a certified copy of such order and a certified Statement from DHCR that more than 60 days had elapsed since the date the PAR decision was issued, and respondent had not filed an Article 78 proceeding challenging the PAR. However, she learned that converting the amended overcharge order to a Judgment will be impossible to enforce without the complete name of the landlord/owner.
Thus, after almost 23 years, on April 26, 2010, petitioner, through counsel, wrote to DHCR, requesting that the name of owner be amended to include "Company." On April 30, 2010, DHCR denied petitioner's request, stating that
. . ."Under the fundamental principle that there must be finality to administrative proceedings, the instant request to modify an order issued at least 17 years earlier cannot be viewed as a timely request for relief. . . ."
In support of her petition, petitioner argues correcting DHCR's amended discharge order does not affect its finality or the substantial rights of the parties, and no deference needs to be paid to DHCR because the issue does not concern DHCR's expertise. The Rent Stabilization Law ( 9 NYCRR §§ 2527.8 and 2529.9) allows DHCR to correct its mistakes and modify any order it issues. Petitioner also argues that DHCR's refusal to correct the landlord/owner's true name is arbitrary and capricious because such act is merely "ministerial"; it only results in reflecting the true name of the party which participated in the underlying proceeding. And, although the CPLR is inapplicable, to the extent Courts apply the CPLR to correct its own judgments and orders, CPLR 5019(a) permits courts to cure a mistake as long as the record clearly supports the intent of the order. Here, argues petitioner, there is no dispute that DHCR intended to apply the amended overcharge order to RM Realty Company. Thus, the DHCR is incorrect, as a matter of law, to refuse to correct the name of the landlord/owner. And, DHCR's characterization of petitioner's request for a "modification" instead of correcting a clerical error is arbitrary and capricious and an abuse of discretion.
Petitioner also argues that there is no time limit in the Rent Stabilization Code or CPLR which restricts or limits the time within which to convert a DHCR order to a Judgement. The only comparable time limitation is the 20-year limitation to enforce a judgment under CPLR 211(b). Thus, this application is timely, and the Court should direct DHCR to amend its amended overcharge order and thereafter, direct the Clerk to convert such order to a judgement.
Petitioner further contends that laches does not apply because there is no prejudice to RM or DHCR. The delay has permitted RM Company the use of funds they should have paid petitioner many years ago. And, interest should be awarded from the date the DHCR issued its original order.
DHCR does not oppose the amendment of the overcharge order.
However, RM opposes the relief sought, arguing that (1) the amended order expressly maintained the issuance date as April 3, 1987, and petitioner's time to enforce the amended overcharge order has expired; (2) petitioner failed to exhaust her administrative remedies by failing to file a PAR on DHCR's April 30, 2010 denying petitioner's letter request to amend the amended overcharge order; and (3) petitioner failed to timely seek reconsideration of the amended overcharge order pursuant to 9 NYCRR 2208.13(a) prior to commencing this Article 78 proceeding, as required. RM also argues that DHCR did not act arbitrarily or capriciously in refusing to further amend the amended overcharge order. RM argues that DHCR correctly determined that petitioner's letter request 17 years after the amended order was issued, and 23 years after the original overcharge order was issued, was untimely. RM argues that reopening the administrative proceedings would severely prejudice it, and the Court lacks the power to amend the amended discharge order and order a judgment based on an improper amendment.
In reply, petitioner argues that the issuance date of the original order, which was maintained by the amended overcharge order, was meant to be used for specifying damages and interest. Moreover, the earliest date petitioner could have converted the amended discharge order to a Judgment is 60 days after which the landlord could have commenced an Article 78 proceeding after the PAR was issued on December 18, 1990, i.e., February 18, 1991. And, petitioner has 20 years from such dated to covert such order to a Judgement, i.e., February 18, 2011.
Petitioner also argues that there is no need for administrative review or to exhaust administrative remedies to correct typographical errors involving names. There is also no need to reopen the administrative proceedings, and no prejudice to RM has been shown.
Nor is filing a PAR necessary, since this proceeding is a hybrid Article 78 which includes a request for Declaratory Judgment to declare the rights of the parties.
Discussion
Contrary to RM's contention, petitioner's time to enforce the amended overcharge order has not expired. It is uncontested that NYC Administrative Code § 26-516(a)(5) provides that an overcharge "order of the [DHCR] . . . may, upon the expiration of the period in which the owner may institute a proceeding pursuant to [CPLR Article 78], be filed and enforced by a tenant in the same manner as a judgment. . . ." Pursuant to CPLR 211(b), a "money judgment is presumed to be paid and satisfied after the expiration of twenty years from the time when the party recovering it was first entitled to enforce it." (Emphasis added). Thus, petitioner has 20 years to convert the amended overcharge order to a judgment from the time when petitioner was "first entitled to enforce" the amended overcharge order.
Petitioner was not entitled to enforce and convert the amended overcharge order until DHCR certified that 60 days elapsed from the date of DHCR's December 18, 1990 PAR order ( i.e., February 18, 1991) and DHCR was not served with a Article 78 petition challenging such PAR order. Thus, applying the 20-year expiration date found in CPLR 211(b), the latest date petitioner could convert the amended discharge order to a Judgment is on or about February 18, 2011. That DHCR maintained the date of April 3, 1987 as the date of issuance has is of no moment, since the landlord/owner's right to file an Article 78 proceeding did not commence until after DHCR issued its determination on the landlord/owner's PAR.
Nor can it be said that petitioner failed to exhaust her administrative remedies by failing to file a PAR on DHCR's April 30, 2010 denying petitioner's letter request to amend the amended overcharge order. A litigant who seeks to challenge a determination of an administrative agency must exhaust all possibilities of obtaining relief through administrative channels before appealing to the courts (Frumoff v Wing, 239 AD2d 216, 657 NYS2d 646 [1st Dept 1997] citing CPLR 7801; Watergate II Apts. v Buffalo Sewer Auth., 46 NY2d 52, 412 NYS2d 821; Young Men's Christian Assn. v Rochester Pure Waters Dist., 37 NY2d 371, 372 NYS2d 633; Schwartz v Bank Street College of Education, 51 AD2d 947, 381 NYS2d 282). Whether judicial review is permissible despite the availability of administrative review turns on whether the nature of the proceeding is to compel an administrative agency to perform a ministerial act, or to review an administrative action already undertaken (Frumoffv Wing, citing Matter of Hamptons Hospital Medical Center, Inc. v Moore, 52 NY2d 88, 96, 436 NYS2d 239). When the "relief sought is in the nature of mandamus to compel rather than mandamus to review, administrative finality is inapplicable" (Britton Realty Co. v State Div. of Housing and Community Renewal, Office, 141 Misc 2d 683, 534 NYS2d 98 [Sup Ct, New York County 1988] citing Ista Management Co. v State Division of Housing and Community Renewal, 139 Misc 2d 1, 526 NYS2d 375, 376 [Sup Ct, New York County 1988]). Although the writ of mandamus to compel performance is an extraordinary remedy, it may be granted when a petitioner's claim is premised upon a specific legal right, ministerial in nature (Sullivan v Siebert, 70 AD2d 975, 417
To the extent petitioner seeks an order, and argues, that DHCR's denial of her letter request to correct the name of the landlord/owner was arbitrary and capricious, the Court refrains from reviewing DHCR's denial, because petitioner failed to exhaust her administrative remedies as to this determination. Petitioner did not file a PAR of DHCR's determination to deny her letter request. Therefore, the Court does not reach the issue of whether the decision of DHCR dated April 30, 2010 is arbitrary or capricious or an abuse of discretion.
However, to the extent petitioner seeks an order determining that substituting the complete name of the Landlord-Owner "R M REALTY COMPANY" for the incomplete name of "R M REALTY" in the Amended Order issued by the DHCR, dated April 3, 1987 and certified on August 18, 1993, is a ministerial act that does not affect the rights of any of the parties in the underlying proceeding," and "directing the DHCR to correct its Order accordingly and forthwith," such application to compel DHCR to perform the correction, falls outside the exhaustion of administrative remedies requirement.
The remedy of mandamus is available "to compel the performance of a ministerial, nondiscretionary act where there is a clear legal right to the relief sought" (Matter of Savastano v Prevost, 66 NY2d 47, 50, 495 NYS2d 6 citing CPLR 7803). Moreover, the act sought to be compelled must be based upon a "specific statutory authority mandating performance in a specified manner" (Highland Hall Apartments, LLC v New York State Div. of Housing and Community Renewal, 66 AD3d 678, 888 NYS2d 67 [2d Dept 2009] citing Matter of Peirez v Caso, 72 AD2d 797, 797, 421 NYS2d 627)).
DHCR issued an order amending the original April 3, 1987 order to "correct the owners [sic] name of subject premise" and it is uncontested that "RM Realty Company" is the correct name of the subject premise. The record also indicates that DHCR failed to correct the owner's name of the subject premise, or that DHCR so corrected the original order. As the correct name of the owner is not reflected on any order by DHCR, petitioner's request, essentially, for an order compelling DHCR issue an order consistent with its determination is warranted ( Gianelli v New York State Div. of Housing and Community Renewal, 142 Misc 2d 285, 536 NYS2d 675 [Sup. Ct., Queens County 1989] ["A matter submitted for determination, whether to an administrative agency or a court, imposes a clear duty to render a decision. The obligation to issue a determination is absolute and therefore ministerial. It is only the process by which the decision is reached which is judgmental. Therefore, the failure to perform the duty to render a determination within a reasonable time is grounds for mandamus to compel]).
And, RM's contention that petitioner is precluded from seeking relief for failing to timely seek reconsideration of the amended overcharge order pursuant to 9 NYCRR 2208.13(a) and 9 NYCRR 2527.8, prior to commencing this Article 78 proceeding, lacks merit. 9 NYCRR 2208.13(a) provides that "The administrator . . . may, prior to the date that a[n] [Article 78 proceeding has been commenced], modify, supersede or revoke any order issued by him under these or previous regulations where he finds that such order was the result of illegality, irregularity in vital matters, or fraud. . ." 9 NYCRR 2527.8 also provides that "The DHCR . . . may issue a superseding order modifying or revoking any order issued by it under this or any previous Code where the DHCR finds that such order was the result of illegality, irregularity in vital matters or fraud." Both rules are silent to petitioner's right to commence an Article 78 mandamus proceeding, or this Court's authority to review a mandamus proceeding, and do not expressly require petitioner to invoke the authority of DHCR under these rules; instead, these rule govern DHCR's right to modify, supercede or revoke its own order, with the first limiting DHCR's authority upon a reopening of a proceeding (see Linick v Kev Realty Co., Inc., 147 AD2d 388, 537 NYS2d 810 [1st Dept 1989 ]("The regulation [ 9 NYCRR 2208.13(a)] requires that a reopening take place prior to the time an Article 78 proceeding must be commenced and that there be a showing of "illegality, irregularity in vital matters, or fraud."); Wesby v State, Div. of Housing and Community Renewal, 20 Misc 3d 1103, 867 NYS2d 21 [Sup 2008] ("[t]he Commissioner's authority to reopen an administrative appeal is . . . strictly limited by Section 2529.9 of the Rent Stabilization Code (RSC), and by Section 2208.13 of the Rent and Eviction Regulations . . . to situations where such order was the result of illegality, irregularity in vital matters or fraud.')). Petitioner is not required seek relief under such rules, and no such reopening is required by petitioner's application.
Petitioner's request that interest be assessed from the date of the original order pursuant to CPLR 5002 and from the date of judgment pursuant to CPLR 5003, is unopposed.
Conclusion
Based on the foregoing, it is hereby
ORDERED and ADJUDGED and DECLARED that the petition is hereby granted to the extent that it is DECLARED that substituting the complete name of the Landlord-Owner "R M REALTY COMPANY" for the incomplete name of "R M REALTY" in the Amended Order issued by the DHCR, dated April 3, 1987 and certified on August 18, 1993, is a ministerial act that does not affect the rights of any of the parties in the underlying proceeding, and the DHCR shall correct such Order accordingly and forthwith; and it is further
ORDERED and ADJUDGED that the branch of the petition for an order declaring that DHCR's refusal to correct the name is arbitrary and capricious, or alternatively, an abuse of discretion, is denied and dismissed; and it is further
ORDERED that the branch of the petition for an Order directing the Clerk of the Court to convert the DHCR Order to a Judgment after petitioner presents to the Clerk a certified copy of the corrected DHCR Order and certification by DHCR that more than sixty days have elapsed since the issuance of the original DHCR Order and the Respondent R M REALTY COMPANY failed to commence an Article 78 Proceeding to challenge the DHCR Order is granted as unopposed; and the Clerk of the Court is hereby directed to convert the subject DHCR Order to a Judgment after petitioner presents to the Clerk a certified copy of the corrected DHCR Order and certification by DHCR that more than sixty days have elapsed since the issuance of the original DHCR Order and the respondent R M REALTY COMPANY failed to commence an Article 78 Proceeding to challenge the DHCR Order and
ORDERED that that the branch of the petition for an Order determining that upon converting the Order to a Judgment that the Statute of Limitations shall be deemed to run for 20 years from its entry under CPLR 211 (b), is granted, as unopposed; and it is further
ORDERED that petitioner's request that interest be assessed from the date of original order pursuant to CPLR 5002 and from the date of judgment pursuant to CPLR 5003, is granted as unopposed; and it is further
ORDERED that petitioner serve a copy of this order with notice of entry upon all parties within 20 days of entry.
This constitutes the decision, order and judgment of the Court.