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Eisenberg v. New York State Division of Housing and Community Renewal

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


December 16, 2008

IN RE SIDNEY EISENBERG, PETITIONER-APPELLANT,
v.
NEW YORK STATE DIVISION OF HOUSING AND COMMUNITY RENEWAL, ET AL., RESPONDENTS-RESPONDENTS.

Order and judgment (one paper), Supreme Court, New York County (Paul G. Feinman, J.), entered July 5, 2007, denying the petition and dismissing the proceeding brought pursuant to CPLR article 78 to annul the determination of respondent New York State Division of Housing and Community Renewal (DHCR), dated July 3, 2006, which affirmed an order of the Rent Administrator deregulating petitioner's apartment based on his alleged default in answering the petition for high income rent deregulation, unanimously reversed, on the law, the facts and in the exercise of discretion, without costs, and the petition granted to the extent of remanding the matter to DHCR for further proceedings to consider additional evidence bearing on whether good cause exists to excuse petitioner's failure either to timely answer or to retain proof of the alleged timely mailing of his answer.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Mazzarelli, J.P., Friedman, Nardelli, Buckley, Freedman, JJ.

111391/06

Given petitioner's failure to submit any objective proof that he had mailed his answer, it was neither arbitrary and capricious nor contrary to law for DHCR to find him in default (see Matter of Szaro v New York State Div. of Hous. & Community Renewal, 13 AD3d 93 [2004]). Nonetheless, in view of petitioner's advanced age and Housing Court's appointment of a guardian ad litem for him in the related holdover proceeding, the matter should be reopened at the administrative level for the reception of additional evidence bearing on whether good cause exists to excuse petitioner's failure either to timely answer or to retain proof of the alleged timely mailing of his answer (see Matter of Dworman v New York State Div. of Hous. & Community Renewal, 94 NY2d 359, 373 [1999]). We note that DHCR does not object to reopening the matter for this purpose.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20081216

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