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Smith v. Donovan

April 16, 2009


Order and judgment (one paper), Supreme Court, New York County (Paul G. Feinman, J.), entered May 6, 2008, which granted an 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 City of NY § 26-301 whether or not the dwelling units that are subject to the vacate orders are lawful, unanimously affirmed, without costs.

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.

Gonzalez, P.J., Mazzarelli, Friedman, Catterson, Renwick, JJ.


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 addition, 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 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: ...

"(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 ...

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