Stone v. Goldberg

Appellate Division of the Supreme Court of New York

Stone v. Goldberg

215 A.D.2d 180, 625 N.Y.S.2d 568, 1995 N.Y. App. Div. LEXIS 4973

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 9, 1995

StatusPublished

Cited by5 cases

This text of 215 A.D.2d 180 (Stone v. Goldberg) 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

Stone v. Goldberg, 215 A.D.2d 180, 625 N.Y.S.2d 568, 1995 N.Y. App. Div. LEXIS 4973 (N.Y. Ct. App. 1995).

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Opinion

Order and judgment, Supreme Court, New York County (Edward Lehner, J.), entered on or about March 3, 1994 and March 21, 1994, respectively, which granted plaintiff’s summary judgment motion, and awarded plaintiff $11,705.20, unanimously affirmed, without costs.

Having failed to exhaust her administrative remedies or commence a CPLR article 78 proceeding, defendant cannot, in this plenary judicial action, collaterally attack the New York State Division of Housing and Community Renewal’s (DHCR) order finding that excessive rent was charged (see, Watergate II Apts, v Buffalo Sewer Auth., 46 NY2d 52). Moreover, defendant’s bare assertion that she did not file a Petition for Administrative Review with the agency because she never received the agency’s order does not overcome the presumption of receipt raised by the DHCR clerical and mailroom personnel’s affidavits setting forth routine office procedures (Woodner Co. v Higgins, 179 AD2d 444, lv denied 80 NY2d 756).

We have reviewed defendant’s constitutional challenges, and find them to be without merit. Concur—Ellerin, J. P., Wallach, Kupferman, Nardelli and Mazzarelli, JJ.

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Order and judgment, Supreme Court, New York County (Edward Lehner, J.), entered on or about March 3, 1994 and March 21, 1994, respectively, which granted plaintiff’s summary judgment motion, and awarded plaintiff $11,705.20, unanimously affirmed, without costs.

Having failed to exhaust her administrative remedies or commence a CPLR article 78 proceeding, defendant cannot, in this plenary judicial action, collaterally attack the New York State Division of Housing and Community Renewal’s (DHCR) order finding that excessive rent was charged (see, Watergate II Apts, v Buffalo Sewer Auth., 46 NY2d 52). Moreover, defendant’s bare assertion that she did not file a Petition for Administrative Review with the agency because she never received the agency’s order does not overcome the presumption of receipt raised by the DHCR clerical and mailroom personnel’s affidavits setting forth routine office procedures (Woodner Co. v Higgins, 179 AD2d 444, lv denied 80 NY2d 756).

We have reviewed defendant’s constitutional challenges, and find them to be without merit. Concur—Ellerin, J. P., Wallach, Kupferman, Nardelli and Mazzarelli, JJ.

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Bluebook (online)

215 A.D.2d 180, 625 N.Y.S.2d 568, 1995 N.Y. App. Div. LEXIS 4973, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stone-v-goldberg-nyappdiv-1995.

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