Santiago v. E. Midtown Plaza Hous. Co., Inc.

Full title: LOLITA SANTIAGO, Petitioner, v. EAST MIDTOWN PLAZA HOUSING CO., INC. and…

Court: Supreme Court of the State of New York, New York County

Date published: Jul 3, 2007

2007 N.Y. Slip Op. 32101 (N.Y. Sup. Ct. 2007)

Opinion

No. 0118732/2006.

July 3, 2007.

DECISION/ORDER

HON. JUDITH J. GISCHE.

Recitation, as required by CPLR § 2219 [a], of the papers considered in the review of this/these motion(s):

Pltff OSC w/pet and notice of pet, JLL affirm, exhs ........... 1 NYC verified answer, w/exhs ................................... 2 East Midtown verified answer w/exhs ........................... 3 Reply w/ JLL affirm ........................................... 4 Stip dated 12/21/06 re: TRO and service ....................... 5

Upon the foregoing papers the court's decision is as follows:

Before the court is an article 78 petition seeking judicial review of the decision by respondents the New York City Department of Housing Preservation and Development ("HPD") dated September 7, 2006 ("the determination") as being arbitrary, capricious and an abuse of discretion. CPLR § 7803 (3). In the alternative, petitioner challenges the determination on the basis that it is not supported by substantial evidence. CPLR § 7803 (4). The petition was commenced by Order to Show Cause with a temporary retraining order ("TRO"). CPLR § 403 (d). The other named respondent, East Midtown Plaza Housing Co., Inc. is petitioner's landlord ("the landlord"). After both respondents were notified that petitioner sought a stay against the landlord, the court granted petitioner a temporary stay, as per the written stip between the landlord and petitioner. That stay remains in effect pending this court's decision.

Each respondent opposes the petition on the basis that petitioner has raised objections to the officer's determination that can be resolved on the submissions before the court, thereby terminating this proceeding, without a hearing. CPLR § 7804 (g). HPD expressly requests an order transferring this proceeding to the Appellate Division, First Department so that it can decide the substantial evidence claims petitioner has raised. CPLR § 7804 (h).

Background

Petitioner is a seventy-nine (79) year old occupant of apartment 3-A in the building owned by the landlord which is organized under the so-called "Mitchell Lama Law." The landlord brought a petition before HPD for a decision on whether it had a right to evict Ms. Santiago on the basis that apartment 3-A was not her primary residence ( I/M/O East Midtown Plaza Housing Company, Inc. v. Santiago, et al). They alleged that Ms. Santiago had relocated permanently to Colorado, where she now lives and has purchased a condominium apartment. They also alleged that Ms. Santiago's failure to prove she had filed tax returns in New York State is also a basis to terminate her tenancy.

HPD set the matter down for a testimonial hearing, which took place over the course of several days in 2006. The landlord presented witnesses, including, Sal Mazzola, a private investigator it hired to investigate its claims, and prepare a report. Mr. Mazzola testified under oath that: 1) Ms. Santiago had last voted in 2002 by absentee ballot, 2) she had obtained a New York driver's license either 1998 or 2002 which was still valid, 3) her credit report showed her recent financial activity as being in Colorado, 4) she had disconnected her phone service to the subject apartment in 2003, 5) she bought a condominium in Colorado in July 2004, 6) she was registered to vote in Colorado, and 7) she had phone service in Colorado. Mr. Mazzola also did surveillance of the apartment, leaving a business card as a subterfuge, but Ms. Santiago did not call him.

The landlord also called its general manager, Ms. Robertson who testified under oath that Ms. Santiago provided income affidavits for the years 2001 through 2004, all of which were notarized in Colorado, as well as correspondence that had been returned to East Midtown as "not deliverable as addressed," and "unable to forward."

Ms. Santiago was represented by counsel at the hearing (the same attorney who represents her in this proceeding) and she testified by telephone from Colorado. Her testimony describes the eye surgery she had and post-operative treatment. She also testified that she returned to New York briefly following the September 11^th terrorist attacks, but did not remain because she could not tolerate the conditions in her apartment which, she testified, included mold, dust and debris. Ms. Santiago admitted that she had not spent more than one night in the apartment since January 2002, but attributed this to her being ill, suffering from the eye surgery, and being unable to fly. She also provided a note from Dr. Greene, a treating physician, that states Ms. Santiago "has begun to respond in a positive fashion, in large part, due to the temporal Colo[rado] climate. Medically she must avoid the high humidity cold hot temperatures found on the East Coast at the present time. She has not been able to return to NYC for these medical reasons. When she is fully stable, she will return to her apartment."

Following the hearing, HPD decided in favor of the landlord, and issued a certificate of eviction on September 7, 2006. The administrative hearing officer set forth her decision in the Decision and/or Certificate of Eviction dated September 7, 2006, which Ms. Santiago now seeks to have this court review under Article 78.

Ms. Santiago contends that the officer's determination, that apartment 3-A is not her primary residence, is not supported by substantial evidence. Specifically, she states in the petition that "[t]he failure of Respondent, HPD to credit Petitioner's uncontradicted testimony relating to her illness was an error of law, arbitrary, capricious and abuse of discretion."

Discussion

Although petitioner and both respondents have argued the merits of whether the officer's determination was "arbitrary, capricious" and therefore an abuse of discretion or without any rational basis, the administrative determination petitioner seeks judicial review of was rendered after a hearing mandated under the laws applicable to Mitchell-Lama housing (28 RCNY § 3-18[b]). "Judicial review of an administrative determination made as the result of a hearing required by law is limited to whether that determination is supported by substantial evidence (see Matter of Silberfarb v. Board of Coop. Educ. Servs., 60 N.Y.2d 979, 981; Whitten v. Martinez, 24 A.D.3d 285 [1^st dept 2005])." Verdell v. Lincoln Amsterdam House, Inc., 27 A.D.3d 388, 390 (1^st dept 2006).

Therefore, regardless of whether the petitioner has accurately stated the applicable standard of review, Article 78 "prohibits the Supreme Court from reaching the issue of whether an agency determination is supported by substantial evidence and requires that such petitions be transferred to the Appellate Division . . ." Verdell v. Lincoln Amsterdam House, Inc., supra at 390 ( internal citations omitted). Petitioner challenges the determination by HPD as being against the weight of the evidence at the hearing. This proceeding must, therefore, be transferred to the Appellate Division, First Department in accordance with CPLR §§ 7803 (4) and 7804 (g) because there is a substantial evidence issue. Al Turi Landfill v. N.Y. State Dep't of Env. Conserv., 98 NY2d 758, 760 (2002).

Although CPLR 7804 (g) authorizes the Supreme Court to decide any issues that would terminate the case, and HPD urges that Ms. Santiago's failure to provide copies of tax returns filed in New York State is alone a reason to terminate her tenancy (28 RCNY 3-02 [n][4][iv]), not only does this raise mixed questions of law and fact, petitioner has raised issues of substantial evidence that mandate the transfer of this petition to the Appellate Division.

Turning to petitioner's motion for injunctive relief, enjoining respondent-landlord from commencing summary proceedings to evict her from the subject apartment, only respondent-landlord opposes this relief, and then on the basis that petitioner has failed to show a likelihood of success on the merits. Further, the landlord argues that if the court grants the injunctive relief petitioner seeks, it must be conditioned upon the payment of rent.

On a motion for a preliminary injunction, the movant must prove the likelihood of ultimate success on the merits, that she will suffer irreparable harm unless the relief is granted, and a balance of the equities in her favor. Paine v. Chriscott v. Blair House Associates, 70 AD2d 571 (1^st dept. 1979); Aetna Insur. Co. v. Capasso, 75 NY2d 860 (1990). The purpose of a preliminary injunction is to maintain the status quo and prevent the dissipation of property that could render a judgment ineffectual. Moy v. Umeki, 10 AD3d 604 (2^nd dept. 2004).

Since the certificate of eviction would be the predicate for any eviction action commenced by the landlord, and petitioner is challenging the determination that resulted in HPD's decision to issue the certificate of eviction that it did, petitioner has demonstrated she will suffer irreparable injury in the absence of the provisional relief sought and that the balancing of the equities falls in her favor. Although, on the one hand, the Supreme Court is prohibited from evaluating the merits of petitioner's claim, the decision to issue such a temporary injunction lies within the discretion of the court, and it can consider the "comparative harm" to the parties if it is granted, or denied. Borenstein v. Rochel Properties Inc., 176 A.D.2d 171 (1^st Dept. 1991). The court also considers the written agreement between petitioner and the landlord, agreeing to the injunctive relief "pending the determination of the proceeding . . ." Since this court is transferring the matter, the preliminary injunction against the landlord proceeding with any eviction of the petitioner is hereby granted on condition that Ms. Santiago continue to pay use and occupancy in the amount otherwise required as rent, and without prejudice to the rights of the parties at the Appellate Division.

Conclusion

Based upon the foregoing,

IT IS HEREBY

ORDERED that the petition seeking the vacatur and annulment of The New York City Department of Housing Preservation and Development is respectfully transferred to the Appellate Division, First Department, for disposition, pursuant to CPLR § 7804 (g). This proceeding involves an issue as to whether a determination made as a result of a hearing held, and at which evidence was taken, pursuant of law, is, on the entire record, supported by substantial evidence [CPLR 7803 (4); CPLR 7804 (g)]; and it is further

ORDERED that the Clerk of the Court is directed to transfer the file to the Appellate Division, First Department, upon service of a copy of this Order with Notice of Entry; and it is further

ORDERED that petitioner's motion for injunctive relief, enjoining the respondent-landlord from commencing summary proceedings to evict her from the subject apartment is granted, to the extent provided above, on condition that Ms. Santiago continue to pay use and occupancy in the amount otherwise required as rent, and without prejudice to the rights of the parties at the Appellate Division; and it is further

ORDERED that any relief not expressly addressed has nonetheless been considered and is hereby denied; and it is further

ORDERED that this shall constitute the decision, order and judgment of the court.