Matter of Irani v City of New York, 2024 NY Slip Op 02756 [227 AD3d 526]

May 16, 2024

Appellate Division, First Department

[*1]

In the Matter of Isabelle Irani, Petitioner,

v

City of New York et al., Respondents.

Romer Debbas LLP, New York (Steven Kirkpatrick of counsel), for petitioner.

Sylvia O. Hinds-Radix, Corporation Counsel, New York (Lorenzo Di Silvio of counsel), for respondents.

Determination of respondent New York City Department of Housing Preservation and Development (HPD), dated December 14, 2021, which, after a hearing, granted the administrative petition of nonparty East Midtown Plaza Housing Company, Inc. for a certificate of eviction on the grounds that petitioner was not using her Mitchell-Lama apartment as her primary residence, unanimously confirmed, the petition denied, and the proceeding brought pursuant to CPLR article 78 (transferred to this Court by order of Supreme Court, New York County [Arlene P. Bluth, J.], entered Aug. 30, 2022), dismissed, without costs. Order, Supreme Court, New York County (Arlene P. Bluth, J.), entered November 28, 2022, which, to the extent appealed from, denied petitioner’s motion to compel HPD to supplement the administrative record and for leave to conduct discovery, unanimously vacated, on the law, petitioner’s motion considered de novo upon the prior transfer to this Court, and, upon such consideration, the motion denied, without costs.

The challenged determination is supported by substantial evidence ( see CPLR 7803 [4]; 300 Gramatan Ave. Assoc. v State Div. of Human Rights , 45 NY2d 176, 179-182 [1978]). The record shows that when requested by East Midtown to submit state and federal tax returns covering eight successive years, petitioner provided only one state return that had been filed two years late ( see 28 RCNY 3-02 [l] [2]), petitioner failed to submit any other state tax returns “for each year of residency” at the hearing to demonstrate that she occupied the subject apartment as her primary residence (28 RCNY 3-02 [n] [4] [iv]), and East Midtown submitted evidence that petitioner sublet or allowed unauthorized occupancy (28 RCNY 3-02 [n] [4] [iii]). Petitioner does not refute this evidence.

Contrary to petitioner’s contention, East Midtown’s notice of default, served in anticipation of the administrative proceeding, was not procedurally defective ( see CPLR 7803 [3]; 28 RCNY 3-18 [a]). Not only did it give “fair notice of the charges” so that petitioner could “prepare and present an adequate defense and thereby have [the] opportunity to be heard” ( Whitbread-Nolan, Inc. v Shaffer , 183 AD2d 610, 612 [1st Dept 1992] [internal quotation marks omitted]), but it was also validly served by the attorneys who were given broad authorization by the corporation’s president to terminate tenancies, commence actions and proceedings, and evict tenants ( see e.g. Goldston v Bandwidth Tech. Corp. , 52 AD3d 360 , 362 [1st Dept 2008], lv denied 14 NY3d 703 [2010]). The death of the corporate president did not negate his actions taken on behalf of the corporation ( see generally Restatement [Third] of Agency § 3.07 [4]; 2A NY Jur 2d, Agency § 53).

Nor was there any error arising from the purported use of petitioner’s tax information, as no “amount of income or any particulars set forth or disclosed in any report or return” was disclosed in the HPD proceeding now under review (Tax Law § 697 [e] [1]; see CPLR [*2] 7803 [3]). A report submitted in a prior proceeding was not relied upon in the instant proceeding for which there was a final agency determination, and which was not a continuation of the prior withdrawn proceeding. Because the prior proceeding was withdrawn without prejudice, “it is as if it had never been” and “everything done [therein was] annulled” ( Newman v Newman , 245 AD2d 353, 354 [2d Dept 1997]; see U.S. Bank N.A. v McCaffery , 186 AD3d 897 , 899 [2d Dept 2020]).

Petitioner’s discovery-related motion should not have been decided after Supreme Court transferred the instant proceeding to this Court ( see Graham v New York City Hous. Auth. , 224 AD2d 248, 248 [1st Dept 1996]; CPLR 7804 [g]). As such, the order denying the motion must be vacated. Nonetheless, as the motion was pending at the time of transfer, this Court “shall dispose of all issues in the proceeding” (CPLR 7804 [g]; see also Matter of Bellet Constr. Co., Inc. v LaRocca , 213 AD3d 599 , 599 [1st Dept 2023]; Matter of 475 Kent Owner, LLC v New York City Loft Bd. , 206 AD3d 401 , 401 [1st Dept 2022], lv denied 39 NY3d 902 [2022]).

Upon review, we deny petitioner’s motion. HPD complied with its obligation to file “a certified transcript of the record of the proceedings under consideration” (CPLR 7804 [e]). As such, there are no statutory grounds to order HPD to file additional records from the discontinued proceeding. Further, the discovery petitioner seeks is neither material nor necessary to assess whether HPD’s determination is supported by substantial evidence, affected by an error of law, or in violation of lawful procedure ( see Matter of CRP/Extell Parcel I, L.P. v Cuomo , 101 AD3d 473 , 474 [1st Dept 2012]; CPLR 408). As noted above, the authorization given by East Midtown to its attorneys is valid as a matter of law. Further, the involvement in the withdrawn proceeding of a private investigator whose report was submitted therein is immaterial to the proceeding under review, in which East Midtown submitted, and HPD relied in its determination upon, other evidence exclusively ( see Matter of Lonray, Inc. v Newhouse , 229 AD2d 440, 440-441 [2d Dept 1996]).

We have considered petitioner’s remaining contentions and find them unavailing. Concur—Webber, J.P., Kern, Shulman, Rodriguez, Pitt-Burke, JJ..