KESSLER v. Carnegie Park Associates, L.P., et al., Defendants. (2019)

Order, Supreme Court, New York County (Saliann Scarpulla, J.,) entered July 10, 2017, which, inter alia, granted the HFZ defendants' motion to dismiss the complaint as against them, unanimously affirmed, without costs.

In this putative class action against the owners and sponsors of residential buildings that were converted to cooperatives or condominiums, plaintiffs contend that they have the right to seek non-purchaser tenant status based on their status as eligible senior citizens or eligible disabled persons, although the offering plans at issue were undisputedly non-eviction plans under General Business Law § 352–eeee(2)(c).  We reject plaintiffs' textual arguments in light of the structure of section 352–eeee.  Special rights for eligible senior citizens and disabled persons are identified only in section 352–eeee(2)(d), which governs eviction plans.  Thus, it would be contrary to rules of interpretation to apply them to non-eviction plans (see Statutes § 240;  People v. Spadafora, 131 A.D.2d 40, 47, 519 N.Y.S.2d 979 [1st Dept. 1987] ).  As we have previously determined, “General Business Law § 352–eeee(2)(d), by its terms, applies only to eviction plans” (Walsh v. Wusinich, 32 A.D.3d 743, 744, 821 N.Y.S.2d 182 [1st Dept. 2006] ).

Nor do the emergency regulations issued by the New York State Department of Law in November 2015 avail plaintiffs.  The regulations support plaintiffs' position, but in 2016 they were expressly stated to be applicable prospectively only.  As the offering plans at issue were accepted for filing before the original emergency regulations were issued, the regulations are not considered to be part of the plans.

This action is also barred by plaintiffs' lack of standing (see Murray v. Empire Ins. Co., 175 A.D.2d 693, 572 N.Y.S.2d 909 [1st Dept. 1991] ).  It is undisputed that none of the named plaintiffs ever resided in any of defendants' buildings or had any dealings with defendants with regard to any coop or condo conversion.