Smith v. Donovan

61 A.D.3d 505, 878 N.Y.S.2d 675
CourtAppellate Division of the Supreme Court of the State of New York
DecidedApril 16, 2009
StatusPublished
Cited by13 cases

This text of 61 A.D.3d 505 (Smith v. Donovan) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Smith v. Donovan, 61 A.D.3d 505, 878 N.Y.S.2d 675 (N.Y. Ct. App. 2009).

Opinion

Order and judgment (one paper), Supreme Court, New York County (Paul G. Feinman, J.), entered May 6, 2008, which granted a CPLR article 78 petition to annul respondent Department of Housing Preservation and Development’s (HPD) denial of relocation assistance to petitioners, directed HPD to provide petitioners with any relocation services it would ordinarily provide to a relocatee as defined in 28 RCNY 18-01 (a), and declared that tenants in buildings subject to orders to vacate are entitled to relocation services from HPD pursuant to Administrative Code of the City of NY § 26-301 whether or not the dwelling units that are subject to the vacate orders are lawful, unanimously affirmed, without costs.

The 12 petitioners occupied shared rooms in a two-story multiple dwelling located in the Bronx. The building contains apartments on the first and second floors, each of which has four bedrooms, a kitchen, bathroom, and living room. In addi[506]*506tion, the basement was converted into an apartment with two rooms, a kitchen, and a bathroom.

Petitioners moved into the building at various times between April 2007 and December 2007. They were told that the building was operated under the name “AJ Family House” as a “three-quarter house,” which had a drug- and alcohol-free environment and imposed an 11:00 p.m. curfew. It is uncontested that all of petitioners paid rent and entered into their rental agreements with a woman who allegedly leased the building from the owners. Petitioners all believed that the facility was a legal residence.

All the petitioners, save one, stayed in rooms on the first and second floors which were furnished with bunk beds that could sleep four to six men; the kitchen and bath facilities were shared by 11 to 16 men. Petitioners state that the house was drug and alcohol free, and that the roommates cooked together, shared responsibility for cleaning, studied Bible, and watched videos. They received their state and federal benefits there, kept personal possessions there, and received mail there.

In December 2007, the leaseholder commenced a proceeding against the owners in the Housing Part of the New York City Civil Court in Bronx County Subsequently, an HPD inspector was sent to inspect the building. On December 26, 2007, the HPD inspector found six class B violations, including illegal conversion to a multiple dwelling, and directed that the premises be restored to lawful occupancy.

On January 3, 2008, HPD issued a vacate order to the owners, lessees and occupants of the building. The vacate order charged that the dwelling had conditions rendering it dangerous to life and unfit for human habitation, including an illegal apartment created in the basement and illegal rooming units and/or single room occupancies on the first and second floors. HPD directed the owner to provide an adequate supply of heat, seal up accessible openings in the cellar apartment, and to legalize the conversion from a private dwelling to multiple dwelling use, if legally feasible, or else restore to lawful occupancy. HPD also directed a fire watch for the entire building.

On January 17, 2008 petitioners contacted HPD and requested that it provide them with relocation assistance pursuant to Administrative Code § 26-301 (1). The statute provides that the Commissioner of HPD has a duty to provide relocation services to certain tenants. It further provides:

“1. The commissioner of housing preservation and development shall have the power and it shall be his or her duty:

“(a) To provide and maintain tenant relocation services . . .

[507]*507“(v) for tenants of any privately owned building where the displacement of such tenants results from the enforcement of any law, regulation, order or requirement pertaining to the maintenance or operation of such building or the health, safety and welfare of its occupants.” (Administrative Code § 26-301 [1] [a] [v].)

Rules promulgated by HPD define “relocatee” as: “[A]n individual . . . deprived of a permanent residence rented by him/ her or them in the City of New York as a direct result of the enforcement of a Vacate Order” (28 RCNY 18-01 [a]).

On January 23, 2008, after HPD refused the request on the ground that petitioners’ occupancy was “illegal,” petitioners commenced this article 78 proceeding by order to show cause. Petitioners sought a judgment (1) granting a writ of mandamus, pursuant to CPLR 7801, directing HPD to provide relocation assistance, and (2) declaring that tenants in privately owned buildings subject to a vacate order are entitled to relocation services, pursuant to Administrative Code § 26-301, regardless of whether the dwelling units subject to the vacate order are lawful.

By decision, order and judgment dated April 30, 2008, Supreme Court granted the petition and annulled HPD’s decision to deny relocation assistance to petitioners. The court remitted the matter to HPD with directions “forthwith to provide [petitioners with any and all services and assistance it would ordinarily afford a relocatee as defined in section 18-01 (a) of the Rules of the City of New York.” The court declared that “tenants in buildings subject to orders to vacate are entitled to relocation services by the Respondent [HPD], pursuant to section 26-301 of the Administrative Code, whether or not the dwelling units which are subject to the order of vacate are lawful.”

On appeal, HPD argues that Administrative Code § 26-301 (1) only requires HPD to offer temporary relocation services “to an individual occupying a lawfully configured dwelling unit as his/ her permanent residence,” and that “illegal and hazardously configured dwelling units in violation of the Building Code and Multiple Dwelling Law cannot create a true and actual tenancy.” In support of its argument, respondent relies on the affidavit of Associate Commissioner for Enforcement Services, who asserts, inter alia, that the term “tenant,” as used in the Administrative Code, “connotes a person residing in a lawfully configured dwelling unit occupied as his/her permanent residence with the consent of the owner.” Based on that connotation, the commissioner argues that it is “HPD’s policy to provide relocation services only to individuals vacated from lawfully configured resi[508]*508dential units otherwise rendered inhabitable [szc] and/or unsafe due to fire, flood, structural problem or other disaster.”

Petitioners assert that Supreme Court correctly determined that they meet the unambiguous requirements of the Administrative Code for receipt of relocation assistance in that they paid monthly rent to reside in a privately-owned building and are being displaced as a result of a vacate order. Moreover, petitioners maintain that the broad language of section 26-301 in no way limits the definition of “tenants” entitled to relocation assistance to persons who live in lawfully configured residences. They further assert that respondent’s interpretation of Administrative Code § 26-301 (1) ignores the legislative intent behind the statute, which is to provide relocation assistance to tenants who lose their housing through no fault of their own.

For the reasons set forth below, we find that Supreme Court properly concluded that tenants in buildings subject to orders to vacate are entitled to relocation services by HPD, pursuant to Administrative Code § 26-301 (1), regardless of whether the dwelling units which are subject to the vacate orders are lawful.

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Cite This Page — Counsel Stack

Bluebook (online)
61 A.D.3d 505, 878 N.Y.S.2d 675, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-donovan-nyappdiv-2009.