NEW YORK COUNTY SUPREME COURT OF THE STATE OF NEW YORK. r I Ws). I No(s). PART LIDD PRESENT: Justice -

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1 UED ON SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: I index Numb&r : 1033W2012 ECHEVARRIA, ALICIA vs. WAMBUA, MATTHEW M. SEQUENCE NUMBER : 001 ARTICLE 78. Justice - - PART LIDD INDEX NO. MOTION DATE MOTION SEQ. NO. The following papers, numbered 1 to, were read on this motion to/for Notice of Motion/Order to Show Cause - Affidavits - Exhibits Answering Affidavits - Exhibits Replying Affidavits I Ws). I No(s). I Ws). Upon the foregoing papers, it is ordered that this motion is w 3 7 I. CHECK ONE:... WCASE DISPOSED r , J.S.C. NON-FINAL DISPOSITION 2. CHECK AS APPROPRIATE:... MOTION IS: GRANTED DENIED 0 GRANTED IN PART 0 OTHER 3. CHECK IF APPROPRIATE:... 0 SETTLE ORDER 0 SUBMIT ORDER 0 DO NOT POST a FIDUCIARY APPOINTMENT REFERENCE

2 ALICIA ECHEVARRIA Petitioner, For a Judgment under Article 78 of the Civil Practice Law and Rules, -against- Index No. MATTHEW M. WAMBUA, AS COMMISSIONER OF THE CITY OF NEW YORK DEP'T OF HOUSING PRESERVATION AND DEVELOPMENT; EAST MIDTOWN PLAZA HOUSING CO.; MARK ANDERMANIS and SANDRA ANDERMANIS, Respondents. Peter H. Moulton, Justice In this Article 78 proceeding petitioner Alicia Echevarria seeks to annul the assignment of a four bedrpom apartment to respondents Mark and Sandra Andermanis by respondents East Midtown Plaza Housing Company ("East Midtown") and the City's Department of Housing Preservation and Development ("HPD"). Petitioner seeks the eviction of the Andermanis family from the apartment and the implementation of a process to ensure that the apartment be awarded according to HPD's rules governing internal apartment transfers within a single Mitchell Lama development. HPD cross-moves for a remand to the agency so that it can 1

3 rescind the determination challenged herein, i.e..the assignment of the apartment to the Andermanises and proceed to assign the apartment in accordance with its own rules. East Midtown moves to dismiss the petition, arguing that Echevarria does not have standing because she would not have gotten the apartment even had the Andermanises not been assigned the apartment. This motion is joined by the Andermanises. BACKGROUND The petition states that Echevarria is a shareholder at the Mitchell-Lama cooperative complex located between 23'd and 25'h Streets and First and Second Avenues in Manhattan. East Midtown is a limited profit housing company that owns the complex. HPD is the agency charged with overseeing Mitchell-Lama complexes in the City. The Andermanises also reside in the complex. Mark Andermanis is a member of the cooperative's board of directors. HPD has promulgated rules regarding internal apartment assignments at Mitchell-Lama developments. In suinmary, a resident of a Mitchell-Lama development whose family composition make her eligible for larger or smaller apartments shall is given priority over non residents for assignment to a apartment within her development when it becomes available. HPD rules provide that a Mitchell-Lama's owner and its managing agent must maintain waiting lists of eligible tenants who wish to move into a larger or smaller 2

4 apartment. Apartments are awarded to eligible tenants in chronological order off the waiting lists. 28 RCNY (h) (8) (I) states in relevant part: All [Mitchell-Lama] housing companies, whether mutual or rental, shall maintain waiting lists on forms approved by HPD for all tenant/cooperator applications for apartment, listed in chronological order, by apartment size, by date of receipt or by order of selection by lottery, as applicable. '1 A shareholder or tenant family is determined to be eligible for a larger apartment depending on the number of family members and the family's composition. For example a family with two parents and two children of opposite genders can be eligible for a three bedroom apartment. The petition alleges that HPD and East Plaza deviated from these rules in awarding a four bedroom apartment (Apartment 6D) to the Andermanis family. Petitioner alleges that she became eligible for an internal transfer to a three bedroom ap'artment upon the birth of her second child on June 23, She alleges that she placed her name on the list for a three bedroom apartment in July The petition alleges that the Andermanis family placed their name on the same list sometime after petitioner.. In their papers the Andermanises admit that they appear on the list after petitioner. According to the petition, Apartment 6D came available in the complex in late 2011 or early Petitioner avers that she and 3

5 her husband inquired about moving into this apartment but were told that they were not eligible because the rules provide that four bedroom apartments are reserved for six-member families, and their family had five members. They were informed that East Midtown s property manager would be meeting with HPD concerning exceptions to this six occupant standard, however petitioner was never informed that HPD had waived the standard. The petition alleges that the Andermanis family, but no other shareholder, was told that HPD would make an exception and make Apartment 6D available to shareholder families with less than six occupants. Sometime in April 2012 HPD approved the Andermanis transfer to Apartment 6D. When petitioner learned of this transfer, and made inquiries, she asserts that she was given conflicting accounts by East Midtown and HPD. According to petitioner, East Midtown told her that the three bedroom waiting list was not used to determine which applicant should get apartment 6D. Instead, the Andermanis family got the apartment because they were the first to inquire about it. According to petitioner, HPD told her that the three bedroom waiting list was used to determine who should get the apartment. Petitioner avers that if the three bedroom list was used to award apartment 6D to the Andermanis family then the list must have been manipulated. 4

6 Petitioner argues that under either explanation the award of the apartment to the Andermanises was arbitrary and capricious since it deviated from HPD's rules concerning the handling of internal transfers. DISCUSSION East Midtown moves to dismiss the petition on the ground that petitioner does not have standing. East Midtown argues that petitioner cannot demonstrate that she would have gotten the apartment but for the award of the apartment to the Andermanises, ' and that she therefore cannot demonstrate that she has an injury in fact. Even if the Andermanises were evicted from the apartment, East Midtown asserts, petitioner cannot show that she would be awarded the apartment. The Andermanises join this motion, asserting that there is another family ahead of petitioner's on the three bedroom apartment waiting list. This argument fails. Even if she was not at the top of the list, petitioner is harmed when another tenant family is jumped to the front of the line. Such preferential treatment harms petitioner because it delays her eventual ascension to the top of the list. For standing purposes, it is sufficient that the award of apartment 6D was given to an applicant outside of the chronological order set forth in HPD rules governing waiting lists. For example, in Matter of Burke v Suqarman (35 NY2d 39) persons 5

7 eligible for appointment off a civil service list were found to have standing to challenge illegal appointments, irrespective of the petitioners' position on the list. "Eligibility, and not certainty, of appointment [is] sufficient to confer standing." (Matter of New York State Ass'n of Communitv Action Asencv Board Members v Shaffer, 119 AD2d 871.) HPD moves for a remand, essentially agreeing with the petitioner that the process followed in awarding the Andermanises apartment 6D did not conform to HPD's rules. Upon remand, it appears that HPD will rescind the award of 6D. and process the transfer of the apartment in accordance with HPD's own rules. The Andermanises oppose the remand, arguing that they have made substantial and expensive improvements to the apartment in reliance on the HPD's and East Midtown's award of the apartment to the them. HPD states that it was never advised by East Midtown that anyone besides the Andermanises on the three bedroom waiting list had expressed an interest in the apartment. It states that it waived its eligibility requirements on that basis. It is clear that the award of the apartment to the Andermanises violates HPDs' own rules regarding transfers. AS the agency charged with fairly allocating apartments according to those rules, it is not barred by estoppel in correcting an error. (Matter of New York State Med. Transporters Ass'n v Perales, 77 NY2d 126, 130.) This is true even where there are "harsh results." 6

8 (Matter of Parkview Associates v Citv of New Yark, 71 N Y2d 274, 282, cert denied 488 US 801.) Matter of Peckham v Colocrero (54 AD3d 27, aff'd 12 NY3d 424), relied on by respondents, is not to the contrary. In Peckham, the agency had followed its usual procedures in reaching its decision. Having done so, the agency was not entitled to seek a "second chance" to achieve a different results on the merits. The Peckham court acknowledged that remand was appropriate where an order is illegal or "irregular in vital matters. 'I Here the decision to award apartment 6D was in derogation of HPD's own rules, and it is not arbitrary and capricious for HPD to seek to correct that irregularity. Of course, the initial error has had serious consequences for the Andermanises. However, the question of whether they are entitled to compensation from their co-respondents for, inter alia, the amounts that they expended in renovation is not before the court on this Article 78 proceeding. Accordingly, it is ORDERED and ADJUDGED that the petition is granted to the extent of remanding this matter to HPD. This constitutes the decision and order of the court. DATED: April $z 2013 UNFILED JUDGMENT 7hL judgment has not been entered by the County ClM and notice of entry cannot be served based hereon. To obtain entry, counsel or authorized representative must appear in person at the Judgment Clerk's Desk (Room 1418). A.J.S.C.