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In re Application of Zabari

Supreme Court, New York County

October 7, 2013

In the Matter of the Application of Doron Zabari, Petitioner,
New York City Loft Board and Bleecker Street Investors, LLC, Respondents.

Unpublished Opinion

Plaintiff: Robert Petrucci

Defendant: NYC Loft Board Heiberger & Associates, P.C. for Bleecker Street Investors, LLC


Petitioner Doron Zabari commenced this Article 78 proceeding for an order: (1) annulling Order No. 2934 (Final Determination) of respondent New York City Loft Board (Loft Board), dated May 19, 2005; (2) declaring, or directing respondent Loft Board to declare apartment 7W (Subject Apartment), located at 17-19 Bleecker Street, New York, New York (Building), to be a rent regulated unit; and (3) directing respondent Loft Board to set the initial legal regulated rent for the Subject Apartment pursuant to the Multiple Dwelling Law (MDL) § 286(3) and 29 RCNY § 2-01(m).


Petitioner currently resides in the Subject Apartment, and respondent Bleecker Street Investors, LLC (Bleecker Street) is the current owner of the Building. Respondent Loft Board is the New York City agency tasked with administering the provisions of the Loft Law. In April 1996, the tenant of the Subject Apartment at the time, Francisco Grande, sold his rights in the Subject Apartment to the owner at the time, 17-19 Bleecker Street, LLC, pursuant to MDL §286 (12). On May 19, 2005, respondent Loft Board issued the Final Determination, finding that the Subject Apartment was no longer subject to rent regulation as a result of such sale. Four years later, in 2009, petitioner moved into the Subject Apartment pursuant to a written lease.

Thereafter, petitioner commenced this proceeding on September 7, 2012, challenging the Final Determination, to which he was not a party and which was issued when he was not a resident of the disputed premises. Respondent Loft Board now cross-moves to dismiss the petition pursuant to CPLR §§ 3211(a)(3), 3211(a)(5), and 7804(f), on the grounds that petitioner lacks standing, and that this proceeding is time-barred. Respondent Bleecker Street supports respondent Loft Board's cross-motion.


Petitioner argues that the Final Determination was improper, as respondent Loft Board's file does not contain an indication of the alleged sale of rights to the Subject Apartment, and, thus, was not supported by substantial evidence. Petitioner further argues that the alleged sale was merely a sale of improvements, pursuant to MDL § 286(6), and not a sale of rights. Petitioner contends that in 1995, respondent Loft Board found respondent Bleecker Street's predecessor, KT & MU Associates, guilty of harassing tenants, a finding that was not lifted until 1997. According to petitioner, the Loft Law and respondent Loft Board's rules state that an owner found guilty of harassment, and any successor, is permanently denied the benefit of deregulation through a sale of improvements while the finding of harassment remains in effect.

Respondent Loft Board cross-moves to dismiss the petition, inter alia, on the grounds that the petition is barred by the applicable four month statute of limitations. Respondent Loft Board argues that, as petitioner seeks to vacate the Final Determination, this proceeding should have been commenced within four months of May 19, 2005.

In opposing respondent Loft Board's cross-motion to dismiss, petitioner argues that the occupant of the Subject Apartment should have been served with the Final Determination, but respondent Loft Board failed to do so, and, thus, the four month statute of limitations began to run when petitioner became aware of the Final Determination. Alternatively, petitioner contends that this Article 78 proceeding is in the nature of a mandamus to direct respondent Loft Board to perform the ministerial act, mandated by law, of setting the initial legal regulated rent. According to petitioner, the four month statute of limitations on a mandamus proceeding begins to run from the date the agency refuses the request, and, thus, the petition herein should be deemed the request, and respondent Loft Board's answer the refusal.

Preliminarily, this court must determine whether this proceeding was timely filed. Petitioner argues that the instant proceeding is timely as he is seeking mandamus relief. "Mandamus is often characterized as an extraordinary remedy that is available only in limited circumstances. Traditionally, the writ of mandamus is the relief invoked when a party seeks to compel performance by a governmental agency of a duty enjoined by law. A party seeking relief in the nature of mandamus must show a clear legal right to that relief". Matter of Cty. of Fulton v State of New York, 76 N.Y.2d 675, 678 (1990) (internal quotations and citations omitted). The Court of Appeals has further held that "[m]andamus...lies only where the right to relief is clear' and the duty sought to be enjoined is performance of an act commanded to be performed by law and involving no exercise of discretion." Matter of Hamptons Hosp. & Med. Ctr., Inc. v Moore, 52 N.Y.2d 88, 96 (1981).

Here, petitioner has failed to show that he is entitled to mandamus relief. Petitioner argues that respondent Loft Board must determine the legal regulated rent of the Subject Apartment. Such argument presumes that the Final Determination, which found that the Subject Apartment was not subject to rent regulation, is invalid, and, thus, according to petitioner, respondent Loft Board is mandated to set the legal regulated rent. However, the Final Determination has not been annulled. As such, the finding that the Subject Apartment is not rent regulated is valid and enforceable. Thus, there is no clear legal right for respondent Loft Board to set the regulated rent of a non-rent regulated apartment. As petitioner has failed to show a clear legal right to the relief, his mandamus argument is inapposite, and the statute of limitations began to run in 2005 when the Final Determination became final and binding.

Moreover, relying on several inapplicable cases petitioner incorrectly argues that a tenant may challenge the rent regulated status of an apartment at any time during its tenancy, as the rent regulated status of an apartment is a "continuous circumstance", not subject to the statute of limitations. See Gersten v 56 7th Avenue LLC, 88 A.D.3d 189, 199 (1st Dep't 2011); 72A Realty Assoc. v Lucas, 101 A.D.3d 401, 402 (1st Dep't 2012); East West Renovating Co. v New York State Division of Housing and Community Renewal, 16 A.D.3d 166 (1st Dep't 2005); Dodd v 98 Riverside Drive, LLC, 2011 NY Slip Op 03708(U). Here, petitioner commenced an Article 78 proceeding to annul the Final Determination, which was indisputably final and binding as of 2005. Petitioner, who exclusively cited cases in which the tenants either raised deregulation as a defense to an eviction proceeding or brought declaratory judgment actions to declare an apartment rent regulated, argues that the four month statute of limitations should not apply to his Article 78 proceeding. However, the cases cited by petitioner do not support his argument. Petitioner cites Suraci v Mucktar, 187 Misc.2d 848, 850 (Civil Ct., NY Cty 2000), which held that a "tenant is entitled to claim any defenses he may have to [an] eviction proceeding, where the landlord claims decontrol of respondent's unit... One such defense is the statutory and regulatory bar against the landlord availing himself of the decontrol provision". However, petitioner is not raising decontrol as a defense in an eviction proceeding. In fact, here, petitioner commenced this Article 78 proceeding against respondents to annul a decision from 2005. Although petitioner is correct in arguing that "the Legislature has not imposed a limitations period for determining the rent regulatory status of an apartment" (Gersten v 56 7th Avenue LLC, 88 A.D.3d 189, 201 [1st Dep't 2011]), in distinction, the Legislature has clearly imposed a strictly applied four month statute of limitations for Article 78 proceedings. In fact, the court in Gerstein, relied on by petitioner, stated that "once an administrative agency has decided a matter...the parties to that matter are entitled to have the determination treated as final". Id. at 204. Pursuant to CPLR § 217, "a proceeding against a body or officer must be commenced within four months after the determination to be reviewed becomes final and binding upon the petitioner". It is undisputed that the Final Determination, dated May 19, 2005, was respondent Loft Board's final decision. Further, it is uncontested that petitioner did not commence this Article 78 proceeding until September 7, 2012, over seven years after the Final Determination. Accordingly, this proceeding was clearly commenced over four months from the date of the Final Determination, and, thus, is untimely. As this Article 78 proceeding is time-barred, this court must deny the petition without prejudice to petitioner commencing a separate action for a declaratory judgment, if appropriate. Further, as indicated, petitioner may raise rent status in any landlord-tenant proceeding initiated by landlord, if necessary. As the petition is denied, this court need not address the remainder of the arguments.

Accordingly, it is

ORDERED that the petition is denied and the proceeding is dismissed without prejudice; and it is further

ORDERED that respondent's cross-motion to dismiss is granted; and it is further

ORDERED that within 30 days of entry, respondent Loft Board shall serve a copy of this order and judgment upon all parties with notice of entry.

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