CIVIL COURT OF THE CITY OF NEW YORK. COUNTY OF NEW YORK: HOUSING PART C CHELSEA PARTNERS LLC, Petitioner, -against- L&T Index No. 79740/08 DANIEL PECKHAM, DECISION / ORDER Respondent. PREMISES: Apartment 4B 244 West 21* Street New York, New York 10011 HON. TIMMIE ERIN ELSNER, J.H.C. Recitation, as required by CPLR §2219(A), of the papers considered in the review of respondent’s motion for, inter alia, summary judgment and petitioner’s cross-motion for summary Judgment pursuant to CPLR §3212 and to dismiss affirmative defenses pursuant to CPLR §3211 Papers Numbered Respondent’s Notice of Motion; and Affirmation in Support and Annexed Exhibits. = - Petitioner's Notice of Cross-Motion, Affirmation & Affidavits in Support and Annexed Exhibits, voces es Respondent’s Affirmation In Reply and In Opposition to Petitioner's Cross-Motion and Affidavit In Opposition to Petitioner's Cross-Motion and Annexed Exhibits... seven : : Petitioner’s Reply Affirmation, 1 Upon the foregoing papers, the Decision/Order of this Court is as follows:PROCEDURAL HISTORY AND BACKGROUND Petitioner, Chelsea Partners LLC, (“petitioner”) commenced this holdover proceeding on, or about, August 1, 2008 against respondent, Daniel Peckham, the rent-stabilized tenant of record (‘espondent”) for the premises at 244 West 21" Street, Apartment 4B, New York, New York (“premises”) on the basis that it intends to demolish the premises and construct a new building, Respondent submitted a verified answer with nine affirmative defenses and two counterclaims. In May 2004, petitioner sought permission from the New York State Division of Housing and Community Renewal (“DHCR”) to terminate respondent's tenancy and demolish the subject building. By Order, dated December 13, 2005, DHCR granted petitioner’s application and provided that: Tenant shail have three months from the issuance date of this Order to voluntarily vacate the apartment and qualify for the stipend and relocation prescribed under Section 2524.5(a)(2)(ii)(a) of the Code. Owner shall comply with all relocation and stipend requirements afforded to the tenant under the Rent Stabilization Code, DHCR Operation Bulletin 2002-1 On, or about, January 17, 2006, respondent filed a Petition for Administrative Review (“PAR”) claiming petitioner filed a false application for demolition by failing to state that at least one apartment in the building remained occupied and by failing to provide adequate proof of its financial ability to complete the demolition, By decision, dated July 27, 2006, DHCR denied respondent’s PAR finding the application was valid. DHCR once again stated respondent would have three (3) months to voluntarily vacate and qualify for the stipend and relocation under the Code. In addition, DHCR determined that “as set forth in RSC 2524.5(a)(2)(i)(4) , and by OB [Operation Bulletin] 2002-1, DHCR retains jurisdiction to enforce non-compliance with relocation and stipendissues, and to resolve disputes between the parties regarding the acceptability of comparable relocation apartments offered by the owner to the tenant.” Respondent timely commenced an Article 78 Proceeding claiming DHCR’s July 27, 2006 decision was arbitrary and capricious in that DHCR failed to fully examine the record regarding false applications” and the owner’s sufficiency of financial ability to perform the construction, Respondent further sought a stay of eviction proceeding as well as an order directing petitioner to provide an alternative rent-stabilized apartment at the same or lower regulated rent. By decision, dated June 25,2007, Justice Paul G. Feinman remanded the matterto the DHCR for further proceedings to clarify the standard used to determine a “demolition,” whether the project constituted a “demolition” under that standard, and for a determination of petitioner's financial ability to complete the project. Petitioner was not precluded from commencing holdover proceedings as part of the Order. Petitioner timely appealed to the Appellate Division, First Department. On, or about, June 26, 2008, the Appellate Division, First Department issued a three-to-two decision reversing Justice Feinman’s decision. It upheld DHCR’s determination stating: Here, the record before the agency was quite sufficient to permit it to determine whether the owner had demonstrated financial ability to complete the project and whether the planned work constituted a demolition. The agency's determinations of those issues were rational and completely in accord with well-established principles. ‘There was no legitimate ground for the remand by the motion court On or about July 30, 2008, respondent filed a Notice of Appeal of the Appellate Division, First Department Decision to the Court of Appeals. The within proceeding was stayed pending a determination by the Court of Appeals. By decision dated May 5, 2009, the Court of Appealsaffirmed the Appellate Division, First Department and Notice of Entry of the Decision was mailed by the Clerk of the Court of Appeals on May 8, 2009. The Court of Appeals held’ As there is a rational basis for DHCR’s order denying petitioner's PAR, we hold that Owner is entitled to treat this determination as final, By letter dated, May 27, 2009, to DHCR, respondent sought a “Request for Enforcement Pursuant to RSC Section 2524.5(a)(2)(ii)() and Section 2526.2 of Opinion and Order of the Commissioner ... (‘Request for Enforcement’). Specifically, respondent seeks, inter alia, to “ensure that the owner complies with his obligation to offer a suitable relocation apartment as required ....” On, or about, August 13, 2009, respondent filed the instant motion for summary judgment. On, or about, September 1, 2009, petitioner cross-moved for summary judgment and to dismiss respondent’s affirmative defenses, RSC Section 2524.5(a)(2) states in pertinent part: ‘The owner shall not be required to offer a renewal lease to a tenant ... and shall file on the prescribed form an application with the DHCR for authorization to commence an action or proceeding to recover possession in a court of competent jurisdiction after the expiration of the existing lease term, upon any one of the following grounds: (2) demolition. (i The owner seeks to demolish the building. Until the owner has submitted proof of its financial ability to complete such undertaking to the DHCR, anid plans for the undertaking have been approved by the appropriate City agency, an order approving such application shall not be issued. (i) Terms and conditions upon which orders issued pursuant to this paragraph authorizing refusal to offer renewal leases may be based:(a) The DHCR shall require an owner to pay all reasonable moving expenses and afford the tenant a reasonable period of time to vacate the housing accommodation. If the tenant vacates the housing accommodation on or before the date provided in the DHCR’s final order, such tenant shall be entitled to receive all stipend benefits pursuant to clause (b) of this subparagraph .... If the tenant does not vacate the housing accommodation on or before the required, the stipend shall be reduced by one-sixth of the total stipend for each month the tenant remains in occupancy after such vacate date, (©) The order granting the owner's demolition application shall provide that the owner must either: (1) relocate the tenant to a suitable housing accommodation, as defined in subparagraph (iii) of this paragraph, at the same or lower legal regulated rent in a closely proximate area, or in a new residential building if constructed on the site, in which case suitable interim housing shall be provided at no additional cost to the tenant; plus in addition to reasonable moving expenses, payment of a five thousand dollar stipend, provided tenant vacates on or before the vacate date required by the final order; or (2) where an owner provides relocation of the tenant to a suitable housing accommodation at a rent in excess of that for the subject housing accommodation, in addition to the tenants reasonable moving expenses, the owner may be required to pay the tenant a stipend equal to the difference in rent, at the commencement of the occupancy by the tenant of the new housing accommodation, between the subject housing accommodation and the housing accommodation to which the tenant is relocated, multiplied by seventy-two months, provided the tenant vacates on or before the vacate date required by the final order; or (3) pay the tenant a stipend which shall be the difference between the tenant’s current rent and an amount calculated using the Demolition Stipend Chart, at a set sum per room per month multiplied by the actual number of rooms in the tenant’s current housing accommodation, but no less than three rooms. This difference is to be multiplied by seventy-two months. (c) wherever a stipend would result in the tenant losing a subsidy or other governmental benefit which is income dependent, the tenant may elect to waive the stipend and have the owner at his or her ownexpense, relocate the tenant to a suitable housing accommodation at the same or lower legal regulated rent in a closely proximate area (©) where the order of the DHCR granting the owner's application is conditioned upon the owner's compliance with specified terms and conditions, if such terms and conditions have not been complied with, the order may be modified or revoked. (£) noncompliance by the owner with any term or condition of the Administrator's or Commissioner’s order granting the owner’s application shall be brought. to the attention of the DHCR’s Compliance Unit for appropriate action. ‘The DHCR shall retain jurisdiction for this purpose until all moving expenses, stipends, and relocation requirements have been met. (ii) Comparable housing accommodation and relocation. Inthe event a comparable housing accommodation is offered by the owner , a tenant may file an objection with the DHCR challenging the suitability of a housing accommodation offered by the owner for relocation within 10 days after the owner identifies the housing accommodation and makes it available forthe tenant to inspect and consider the suitability thereof... NYS DHCR Operational Bulletin 2002-1- entitled “Procedures Pursuant to the Rent Stabilization Code for the Filing of an Owner's Application to Refuse to Renew Leases on the Grounds of Demolition Implementing Emergency Tenant Protection Regulations” states, in pertinent part: L INTRODUCTION This Operational Bulletin . . . is issued pursuant to Sections 2504,4(f), and 2507.11 ofthe Bmergency Tenant Protection Regulations (“TPR”), Sections 2524.5(a)(2) and 2527.11 of the Rent Stabilization Code (“RSC”), and Sections 2204.8 (c) and 2209.8of the New York City Rent and Eviction Regulations Sections 2504.4(£) of the TPR and 2524.5(a)(2) of the RSC provide that an owner shall not be required to offer renewal leases to tenants and may maintain an action or proceeding to recover possession in a court of competent jurisdiction after the expiration of the existing lease term, where DHCR has granted such owner’s application to demolish all of the apartments located in the subject building I BLIGIBILITY & APPLICATION ‘An owner must state in the application that recovery of possession of the housing accommodations is being sought for the purpose of demolishing them. Until an owner has submitted proof to the DHCR of financial ability to complete such undertaking, and plans for the undertaking have been approved by the appropriate governmental agency, an order approving the application will not be issued. . V. STIPENDS AND OTHER RELOCATION CONDITIONS Any order granting an Owner's application shall require the owner to pay all reasonable moving expenses. The tenant shall also be afforded a reasonable period of time within which to vacate the apartment, If the tenant vacates the apartment on or before the date provided in the DHCR final order which authorizes the owner to refuse to renew the tenant’s lease and obtain possession of the apartment, such tenant shall be entitled to receive all stipend benefits pursuant to subparagraphs (1), ot (2), or (3) below. If the tenant does not vacate the apartment on or before the date upon which a final order authorizes the owner to obtain possession of the apartment, the stipend shall be reduced. The reduction of the stipend shall be one-sixth of the total stipend for each month the tenant remains in occupancy after the vacate date indicated in the final order. ‘The order granting the owner's application shall also provide that, at the owner's option, the owner may: 1. Relocate the tenant to a suitable housing accommodation the same or lower regulated rent in a closely proximate area, or in a new residential building ifconstructed on the site, in which case-suitable interim housing shall be provided to the tenant at no additional cost; plus, in addition to reasonable moving expenses, payment of a $5,000 stipend shall be made to the tenant, provided he or she vacates on or before the vacate date set forth in the DHCR order; or Where an owner provide relocation of the tenant to a suitable housing accommodation at a rent in excess of that for the subject housing accommodation, in addition to the tenant's reasonable moving expenses, the ‘owner may be required to pay the tenant a stipend equal to the difference in rent, at the commencement of the occupancy by the tenant of a new housing accommodation, between the subject housing accommodation and the housing accommodation to which the tenant is relocated, multiplied by 72 ‘months (6 years), provided the tenant vacates on or before the vacate date set forth in the DHCR Order; or Pay the tenant a stipend which shall be the difference between the tenant's current rent and an amount to be calculated using the demolition stipend chart, per room per month, multiplied by the actual number of rooms in the tenant's housing accommodation, but no less than three rooms. Applicable To Al! Housing Accommodations Wherever a stipend would result in any tenant losing a subsidy or other governmental benefit which is income dependent, at the tenant's option the tenant the tenant may elect to waive the stipend and have the owner at his or her own expense, relocate the tenant to a suitable housing accommodation at the same or lower regulated rent in a closely proximate area. In the event that the tenant dies prior to the issuance by the DHCR of a final order granting the owner’s compliance with specified terms and conditions, if such terms and conditions have not been complied with, the Order may be modified or revoked. The owner's non-compliance with any term or condition of the Administrator’s Order granting the owner's application shall be brought to the attention of the DHCR’s Compliance Unit forappropriate action. DHCR shall retain jurisdiction for this purpose until all moving expenses, stipends, and relocation requirements have been met. VI. COMPARABLE APARTMENTS AND RELOCATION In the event a comparable apartment is offered by the owner, a tenant ‘may file an objection with the DHCR challenging the suitability of an apartment offered by the owner for relocation, within 10 days after the owner identifies the apartment and makes it available for the tenant to inspect and consider the suitability thereof. The apartment will then be inspected by the staff of the DHCR within 30 days, on notice to both sides, so that the DHCR may determine whether the offered apartment is suitable. The DHCR will make such determination as promptly as practicable thereafter. In the event the DHCR determines that the apartment is not suitable, the tenant shall be offered another apartment, and shall have ten days after it is made available by the owner for the tenant’s inspection to consider its suitability. ANAL Pursuant to CPLR §3212, summary judgment is a drastic remedy that deprives litigants of their day in court, and it “should only be employed when there is no doubt as to the absence of triable issues.” See Andre v Pomeroy, 35 NY2d 361 [1974]; see also, Doize v Holiday Inn Ronkonkoma, 6 AD3d 573 [2d Dept 2004]. The court’s function is not to determine credibility, but to determine if there exists a triable issue, or if arguably there is a genuine issue of fact. See S.J. Capelin Assocs., Inc. v Global Mfg. Corp., 34 NY2d 338 [1974]. The movant has the initial burden of proving entitlement to summary judgment and upon such proof, the opposing party must show facts sufficient to require a trial of any issue of fact. See Winegrad v New York Univ. Med. Center, 64 NY2d 851 [1985](citing, Zuckerman v City of New York, 49 NY2d 557 [1980].) Here, respondent contends he is entitled to summary judgmentas the proceeding is prematurein that DHCR has not rendered a final determination. According to counsel, filing of respondent's Request for Enforcement with the DHCR mandates that the proceeding be dismissed as DHCR has not rendered a determination as to whether a proper offer of a stipend / relocation apartment was ‘made pursuant to the Code as directed in the DHCR determination and whether the three-month period in which respondent was to vacate has expired, According to petitioner, itis under no further obligation to provide stipend/ relocation benefits to respondent as his stay expired within three months of July 27, 2006 when DHCR issued its PAR Order. ‘The Court finds that the Proceeding need not be dismissed as it was commenced at a time when no stay was in effect, however, the respondent's statutory three-month stay was tolled pending 4 final determination by the Court of Appeals. To rule otherwise would force the respondent to choose between pursuing his right of appeal and thus giving up statutory benefits as a penalty; or accepting said benefits, thus vitiating the benefit of an appeal. Furthermore, the Court of Appeals affirmed DHCR's determination on the PAR in its entirety including the language relating to the stipend and relocation assistance. Until the Court of Appeals rendered its Decision, DHCR’s Order was not final. The three-month period began on May 8, 2009 (when the Order with Notice of Entry ‘was mailed) and expired on August 13, 2009. It is clear that given respondent’s Request for Enforcement, proceedings before DHCR have not been completed. Specifically, respondent seeks, inter alia, to “ensure that the owner complies with his obligation to offer a suitable relocation apartment as required...” Respondent avers that he currently receives “medical support (Medicare/SLIMB) and food stamps, and receipt of the applicable stipend would jeopardize his eligibility for these benefits” and, as a result, wishes to “opt for a relocation apartment” pursuant to RSC Section 2534.5(a)(2)(ii){ ¢). Petitioner counters that 10respondent is neither entitled to stipend nor relocation benefits. Therefore, an issue of fact is raised that is not susceptible to a motion for summary judgment, namely, whether petitioner complied with all stipend / relocation requirements set forth by DHCR pursuant to RSC. Pursuant to RSC Section 2524.5(a)(2)(ii(e), “where the order of the DHCR granting the owner's application is conditioned upon the owner's compliance with specified terms and conditions, if such terms and conditions have not been complied with, the order may be modified orrevoked.” As set forth in RSC Section 2524,5(a)(2)(ii)(), in the event of “noncompliance by the owner with any term or condition of the Administrator's or Commissioner’s order granting the owner’ application shall be brought to the attention of the DHCR’s Compliance Unit for appropriate action” and “DHCR shall retain jurisdiction for this purpose until all moving expenses, stipends, and relocation requirements have been met.” This language is repeated in DHCR’s July 27, 2006 decision on the PAR - “DHCR retains jurisdiction and stipend issues, and to resolve disputes between the parties regarding the acceptability of comparable relocation apartment offered by the owner to the tenant.” The Court of Appeals, in Sohn v Calderon, 78 NY2d 755 [1991], gave DHCR the exclusive and original jurisdiction over demolition proceedings. In Sohn, the Court of Appeals held: Supreme Court’s consideration of the delays that purportedly typify the administrative adjudicative process was inappropriate, since that factor, to the extent it might ever be relevant at all, would apply only in the application of the doctrine of “primary jurisdiction.” That doctrine, which represents an effort to “coordinate the relationship between courts and administrative agencies,” generally enjoins courts having concurrent jurisdiction to refrain from adjudicating disputes within an administrative agency’s authority, particularly where the agency's specialized experience and technical expertise is involved (citations omitted]. While the rule is certainly not without exceptions, no such exception is possible where, as here, the agency's uoriginal jurisdiction is exclusive . Jn this instance, although the Court of Appeals held “Owner is entitled to treat this determination as final” and “[bJecause Owner has satisfied DHCR’s requirements and obtained necessary approvals, it should be able to proceed with its demolition project without the threat of having to revisit the entire administrative process again,” these statements relate to the owner's burden of establishing “financial ability to complete such undertaking” as well as the requirement that “plans for the undertaking have been approved by the appropriate City agency.” Neither DHCR nor the courts have addressed the issue of whether petitioner fulfilled the relocation and stipend requirements as directed by DHCR’s Order. CONCLUSION This court lacks jurisdiction to enforce the condition imposed upon petitioner relating to the stipend / relocation. Respondent's motion for summary judgment and petitioner's ctoss-motion for summary judgment and to dismiss affirmative defense are denied without prejudice to renew upon DHCR’s review of the issues raised in respondent's Request for Enforcement, Given the lengthy history of proceedings between the parties and delay engendered by same, this court will submit a letter to DHCR secking an expedited review and /or response to respondent's Request for Enforcement. This matter is marked off calendar pending a determination by DHCR, In the event he has not previously been ordered to do so, respondent is directed to pay use and occupancy pendente lite at the last regulated monthly rent commencing September 2009 without prejudice to either parties’ rights. September, October, November and December 2009 use and 12‘occuupaney shall be payable by December 21, 2009. Thereafter, use and occupancy shall be payable by the tenth of each month pendente lite. Dated: New York, New York December 9, 2009 Uf TIMMIE ERIN ELSNER, J. 13