Trump Presidential, Inc. v. Nyc Dep't of Hous. Pres. & Dev.

170 A.D.3d 866

96 N.Y.S.3d 248

In the Matter of TRUMP PRESIDENTIAL, INC., Respondent,

v.NYC DEPARTMENT OF HOUSING PRESERVATION AND DEVELOPMENT, Appellant.

2017–09631

Index No. 6555/16

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

Argued—December 17, 2018

March 13, 2019

Zachary W. Carter, Corporation Counsel, New York, N.Y. (Richard Dearing and Diana Lawless of counsel), for appellant.

Gerard J. White, P.C., Malverne, NY, for respondent.

ALAN D. SCHEINKMAN, P.J., HECTOR D. LASALLE, BETSY BARROS, ANGELA G. IANNACCI, JJ.

DECISION & ORDER

In a proceeding pursuant to CPLR article 78, the NYC Department of Housing Preservation and Development appeals from a judgment of the Supreme Court, Queens County (Salvatore J. Modica), entered April 4, 2017. The judgment, insofar as appealed from, granted those branches of the petition which were to vacate all fines, penalties, violations, and repair assessments generated after February 20, 2015, and to compel the NYC Department of Housing Preservation and Development to remove the property from its Alternative Enforcement Program.

ORDERED that the judgment is reversed insofar as appealed from, on the law, with costs, and those branches of the petition which were to vacate all fines, penalties, violations, and repair assessments generated after February 20, 2015, and to compel the NYC Department of Housing Preservation and Development to remove the subject property from its Alternative Enforcement Program are denied.

On February 20, 2015, the petitioner purchased the subject property, a three-story apartment building located in St. Albans, at a foreclosure sale. The petitioner had been the mortgagee of the property. On August 7, 2015, a referee's deed was executed, and on September 16, 2015, the deed was recorded. In January 2016, the petitioner filed a property registration form with the respondent, New York City Department of Housing Preservation and Development, sued herein as NYC Department of Housing Preservation and Development (hereinafter HPD). In February 2016, approximately one year after the petitioner purchased the property, HPD selected the property for participation in the Alternative Enforcement Program (hereinafter the AEP), a program designed to alleviate emergency conditions in distressed buildings by compelling compliance with the requirements of the New York City Housing Maintenance Code (Administrative Code of City of NY, tit 27, ch 2).

In June 2016, the petitioner commenced this proceeding pursuant to CPLR article 78, inter alia, to set aside certain fines, penalties, violations, and repair assessments generated by HPD, and to compel HPD to remove the subject property from the AEP. The Supreme Court granted those branches of the petition. We reverse.

A party who objects to the act of an administrative agency must exhaust all available administrative remedies (see Town of Oyster Bay v. Kirkland, 19 N.Y.3d 1035, 954 N.Y.S.2d 769, 978 N.E.2d 1237 ; Matter of Sybalski v. Delaney, 140 A.D.3d 776, 30 N.Y.S.3d 910 ). Here, the petitioner failed to timely pursue an available administrative remedy prior to seeking judicial intervention (see N.Y. City Housing Maintenance Code [Administrative Code of City of NY, tit 27, ch 2] § 27–2129; Matter of Shahid v. City of New York, 144 A.D.3d 1163, 43 N.Y.S.3d 393 ). While the petitioner contends that some of the violations and charges predate its acquisition of title and that its entry into possession was delayed due to obstruction by the prior owner, some of the violations and charges occurred after the petitioner purchased the building. Further, since HPD records its...