IN RE: 269 MESEROLE ST REALTY (2025)

DECISION & ORDER

In a proceeding pursuant to CPLR article 78 to review a determination of the New York City Department of Housing Preservation and Development dated September 2, 2021, which denied the petitioner's application for J–51 tax benefits pursuant to RPTL 489, the New York City Department of Housing Preservation and Development appeals from a judgment of the Supreme Court, Kings County (Robin K. Sheares, J.), dated August 12, 2022.  The judgment, insofar as appealed from, upon granting the amended petition and annulling the determination, directed the New York City Department of Housing Preservation and Development to grant the petitioner's application for J–51 tax benefits pursuant to RPTL 489.

ORDERED that the judgment is reversed insofar as appealed from, on the law, with costs, and the matter is remitted to the Supreme Court, Kings County, for further proceedings consistent herewith.

The petitioner applied to receive J–51 tax benefits pursuant to RPTL 489 for a building it owned.  In a determination dated September 2, 2021, the New York City Department of Housing Preservation and Development (hereinafter HPD) denied the application.  HPD indicated that the building did not meet the J–51 program's criteria relating to the required number of legal bedrooms and that HPD did not reach a conclusion regarding any other criteria that might make the building ineligible for J–51 tax benefits.

The petitioner commenced this proceeding pursuant to CPLR article 78 to review the determination.  In a judgment dated August 12, 2022, the Supreme Court granted the amended petition, annulled the determination, and directed HPD to grant the petitioner's application for a J–51 tax benefits.  HPD appeals from so much of the judgment as directed it to grant the petitioner's application, contending that the matter should have been remitted to it to assess whether the building satisfied the remaining criteria.

Under the circumstances of this particular case, which include, among other things, HPD's undisputed assertion that the building was converted to a condominium while the application was pending, we agree with HPD that the matter must be remitted to it to assess whether the building satisfied the remaining criteria (see Matter of Torres v. Kelly, 102 A.D.3d 468, 469, 958 N.Y.S.2d 117).

The petitioner's contentions do not warrant a contrary result.

Accordingly, we reverse the judgment insofar as appealed from.

DILLON, J.P., DOWLING, TAYLOR and VENTURA, JJ., concur.