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Supreme Court, Appellate Division, First Department, New York.

IN RE: HYK-273 W. 138TH STREET LLC, et al. Petitioners–Appellants, v. The NEW YORK STATE DIVISION OF HOUSING AND COMMUNITY RENEWAL, Respondent–Respondent, Emily Sherman, Respondent.


Decided: February 07, 2019

Acosta, P.J., Gische, Kapnick, Gesmer, Singh, JJ. Alter & Barbaro, Brooklyn (Stephen V. Barbaro of counsel), for appellants. Mark F. Palomino, New York (Sandra A. Joseph of counsel), for respondent.

DHCR's determination that petitioners violated Administrative Code §§ 26–412(d) and 26–413(b)(3)(a) and 9 NYCRR 2205.1(b) and 2206.5 by harassing tenants with the aim of causing them to vacate the premises has a rational basis in the record and is not arbitrary and capricious (see Matter of Pell v. Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 N.Y.2d 222, 231, 356 N.Y.S.2d 833, 313 N.E.2d 321 [1974] ).

There is no basis for disturbing the administrative law judge's conclusion following a hearing that respondent Emily Sherman, Danielle Sherman and Allen Sherman were tenants for purposes of Administrative Code §§ 26–412(d) and 26–413(b)(3)(a) and 9 NYCRR 2205.1(b) and 2206.5 (see Matter of Herzog v. Joy, 74 A.D.2d 372, 374–375, 428 N.Y.S.2d 1 [1st Dept. 1980], affd 53 N.Y.2d 821, 439 N.Y.S.2d 922, 422 N.E.2d 582 [1981];  Administrative Code § 26–403[m] [defining “tenant” as “tenant, subtenant, lessee, sublessee, or other person entitled to the possession or to the use and occupancy of any housing accommodation”];  9 NYCRR 2200.2[o] ).  Contrary to petitioners' argument, the departure of respondent Emily Sherman, the tenant of record, from the apartment is not determinative as to the family members who remained (see Herzog, 74 A.D.2d at 374–375, 428 N.Y.S.2d 1).  Nor did petitioners demonstrate that Danielle, who testified to having lived in the apartment her whole life, and Allen, who testified to having lived there since 2004, were not “entitled” to the “use and occupancy” of the apartment.

The record also supports the determination that petitioners were not, as they claim, acting to restore the premises to a livable condition but were neglecting or taking affirmative steps to worsen the deplorable conditions in the apartment, of which they were well aware at all relevant times, with the aim of evicting the residents so that they could demolish and redevelop the premises, and that, in doing so, they destroyed the apartment and most of the family's belongings.

Petitioners' argument that the tenants are not entitled to the protections of the Rent Stabilization Code because the apartment is not their primary residence is raised for the first time on appeal and is in any event unavailing.  The Rent Stabilization Code is not implicated here.  Moreover, petitioners failed to show that the apartment was not Danielle's and Allen's primary residence.  Indeed, petitioners failed to show that the apartment was not Emily's primary residence, given the circumstances of her departure (see e.g. 542 E. 14th St. LLC v. Lee, 18 Misc.3d 98, 854 N.Y.S.2d 278 [App. Term, 1st Dept. 2007], affd 66 A.D.3d 18, 883 N.Y.S.2d 188 [1st Dept. 2009] ).

Petitioners complain of procedural defects under CPLR 7804(e), in particular, “the absence of a full transcript of the record and proceedings.”  However, there was no apparent prejudice to petitioners, who cited to hearing testimony in their pleadings (see Matter of Smith v. Quinn, 120 A.D.3d 1509, 992 N.Y.S.2d 457 [3d Dept. 2014] ).

Petitioners waived their arguments about Lebovits's personal liability by failing to raise them before DHCR (see Matter of Yonkers Gardens Co. v. State of N.Y. Div. of Hous. & Community Renewal, 51 N.Y.2d 966, 435 N.Y.S.2d 706, 416 N.E.2d 1041 [1980] ).

We have considered petitioners' remaining arguments and find them unavailing.