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Department of Housing Preservation & Development of the City of New York v. OCG 1

Supreme Court of New York, Appellate Division, First Department

April 21, 2011

Department of Housing Preservation and Development of the City of New York, Petitioner-Respondent Alexander Shpigel, Respondent-Appellant, -and-
v.
OCG 1, Sinai Sido, and Arie Speigal, Respondents.

Respondent Alexander Shpigel appeals from an order of the Civil Court of the City of New York, Bronx County (Jerald R. Klein, J.), dated June 4, 2010, after a hearing, which denied his cross motion to vacate a consent order and dismiss petitioner's contempt application in a Housing Part enforcement proceeding.

PRESENT: Schoenfeld, J.P., Shulman, Hunter, Jr., JJ.

PER CURIAM.

Order (Jerald R. Klein, J.), dated June 4, 2010, affirmed, with $10 costs.

On June 24, 2008, non-party attorney Howard Poch entered into a consent order on behalf of all respondents in this Housing Part enforcement proceeding. With this consent order, respondents agreed, among other things, to remove numerous violations at the building at issue and to provide heat and hot water to their tenants. Upon the subsequent motion of petitioner, Department of Housing Preservation and Development of the City of New York (HPD), to punish respondents for contempt for failing to comply with the consent order, respondent Shpigel cross-moved in July 2009 to vacate the order and to dismiss the contempt proceeding, claiming that Poch had no authority to execute the order on his behalf. After a hearing, Civil Court determined that Poch had authority to represent Shpigel in this proceeding, and we now affirm.

The hearing evidence, fairly interpreted, supports a finding that Poch, who undisputedly had authority to represent the building owner and two of the three individual respondents in this proceeding, also had actual authority to represent and enter into the consent order on behalf of respondent Shpigel, who was named in the petition as "officer of owner." We also note that even if Poch lacked actual authority, the record contains ample evidence of his apparent authority to enter into the consent order (see Hallock v State of New York, 64 N.Y.2d 224, 231-232 [1984]; Davidson v Metropolitan Tr. Auth., 44 A.D.3d 819 [2007]; Daniels v Concourse Animal Hosp., 41 A.D.3d 284 [2007]). Since Shpigel was an "owner" respondent in this proceeding (see Multiple Dwelling Law § 4[44]; Administrative Code of City of NY § 27-2004[a][45]), HPD's attorney could reasonably believe that Shpigel was appearing by the same attorney as the building owner and other "owner" respondents (see Clark v Bristol-Myers Squibb & Co., 306 A.D.2d 82, 85 [2003]; Suncoast Capital Corp. v Global Intellicom, Inc., 280 A.D.2d 281');">280 A.D.2d 281 [2001]; see also 1420 Concourse Corp. v Cruz, 175 A.D.2d 747');">175 A.D.2d 747, 749-750 [1991]). Notably, no other attorney appeared in the proceeding for Shpigel and, at the time the consent order was executed, no objection to Poch's authority was raised by any of the individuals present in court on behalf of the owners.

Moreover, Shpigel ratified the authority of Poch to enter into the consent order by receiving the benefit of its terms and failing to raise any objection for more than one year from the date of the order (see Weil, Gotshal & Manges, LLP v Fashion Boutique of Short Hills, 56 A.D.3d 334, 335 [2008]; Paul v Paul, 305 A.D.2d 565, 566 [2003]; Broadmass Assoc., LLC v McDonald's Corp., 286 A.D.2d 409 [2001]; Suncoast Capital Corp. v Global Intellicom, 280 A.D.2d at 281; 1420 Concourse Corp. v Cruz, 175 A.D.2d at 750).


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