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FILED: NEW YORK COUNTY CLERK 12/21/2022 06:35 PM INDEX NO. 100480/2022
NYSCEF DOC. NO. 137 RECEIVED NYSCEF: 12/21/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
X
In the Matter of the Application of
SARAH SIEGEL,
Petitioner,
For a Judgment Pursuant to Article 78 of the Civil Practice Index No. 100820/22
Law and Rules,
(Assigned to: J. Bluth)
-against
NEW YORK CITY DEPARTMENT OF HOUSING
PRESERVATION AND DEVELOPMENT, and
AGUILAR GARDENS, fNC.,
Respondents.
X
MEMORANDUM OF LAW OF RESPONDENT HPD
HON. SYLVIA O. HINDS-RADIX
Corporation Counsel of the
City of New York
Attorney for Respondent HPD
100 Church Street
New York, New York 10007
Tel: (212) 356-2209
Fax (212) 356-2059
MICHELLE GOLDBERG-CAHN,
SHERYL NEUFELD,
JACQUELINE HUI
of Counsel.
December 21,2022
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PRELIMINARY STATEMENT
Petitioner commenced the underlying Article 78 proceeding seeking, inter alia, an
order vacating the New York City Department of Housing Preservation and Development's
("HPD") determination denying Petitioner's appeal for succession rights to Apartment 8N in the
building located at 7l-50 Parsons Boulevard, Flushing, New York 11367 (the "subject
apartment") ("HPD's Decision" or "HPD's final determination"), which is governed by Article II
of the New York Private Housing Finance Law ("PHFL"), also known as the Mitchell-Lama
Law
In the instant motion, HPD seeks an order, pursuant to Rule 5015(a) and Section
5019(a) of the New York Civil Practice Law and Rules ("CPLR"), to correct mistakes in the
Court's Decision and Order, dated October 24, 2022 ("the Decision and Order"), which
erroneously states that Respondents HPD and Aguilar Gardens, Inc. ("Aguilar") did not submit
opposition to the Verified Petition ("petition"); or, in the alternative, an order, pursuant to CPLR
p1ule 2221(d), granting HPD's motion for leave to reargue the underlying Article 78 proceeding,
and upon such reargument, modification of the Decision and Order to reflect that Respondents in
fact timely served, submitted and filed opposition to the petition and for the Court to issue a
ruling on the merits. A copy of the Decision and Order is annexed to the accompanying
Affirmation of Jacqueline Hui in Support of the Motion to Cure Mistakes in the Decision and
Order, dated December 21,2022 ("Hui Affirm.") as Exhibit "A."l
Even though Respondents did timely serve, submit and file their opposition
papers via the New York State Electronic Filing System ("NYSCEF"), due to an administrative
I All exhibits referenced herein are annexed to the accompanying Hui Affirm. and this Court is
respectfully referred thereto.
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delay and oversight, the Court erroneously granted the petition "without opposition (respondents
requested, and received, an adjournment of the return date but neither ever submitted
((A,))
opposition)." Exhibits "B)) and'0C."
In the Court Notice, dated November 15, 2022 ("Court Notice"), the Court
concedes "that respondents did, in fact, file opposition to the petition although the files were
uploaded to NYSCEF instead of submitted via hard copies in what was initially filed as a paper
case." Exhibit "C." Further, the Court Notice states, in pertinent part, "respondents should make
the proper motion so that the Court can consider this case on the merits and, if such a motion is
made, include petitioner's papers so that the full record is included on NYSCEF." Id.
For the reasons set forth herein, and in the accompanying Hui Affirm., since
Respondents did in fact timely serve, submit and oppose the petition (see Exhibit "B"), the
petition should not have been "granted without opposition," and the mistake in the Decision and
Order (see Exhibit "A") should be cured pursuant to CPLR Rule 5015(a) and Section 5019(a);
or, in the alternative, HPD's motion for leave to reargue now consider the underlying Article 78
proceeding on its merits, and to correct and modify the Decision and Order accordingly, pursuant
to CPLR Ptule222I(d).
RELEVANT STATUTORY FRAMEWORI(
Grounds for Motion to Modifu a Prior Order
Rule 5015 of the CPLR, entitled "Relief from judgment or order," reads, rn
pertinent part, the following:
(a) On motion. The court which rendered a
judgment or order may relieve a party from it upon
such terms as may be just, on motion of any
interested person with such notice as the court may
direct, upon the ground of:
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1. excusable default, if such motion is made
within one year after service of a copy of the
judgment or order with written notice of its entry
upon the moving party, or, if the moving party has
entered the judgment or order, within one year after
such entry; or
2. newly-discovered evidence which, if
introduced at the triaI, would probably have
produced a different result and which could not
have been discovered in time to move for a new
trial under section 4404; or
3. fraud, misrepresentation, or other
misconduct of an adverse party; or
4. lack ofjurisdiction to render the judgment or
order; or
5. reversal, modification or vacatur of a prior
judgment or order upon which it is based....
Section 5019 of the CPLR, entitled "Validity and correction ofjudgment or order;
amendment of docket," reads, in relevant part, as follows:
a. Validity and correction of judgment or order. A judgment
or order shall not be stayed, impaired or affected by any
mistake, defect or irregularity in the papers or procedures in
the action not affecting a substantial right of a party. A
trial or an appellate court may require the mistake, defect or
irregularity to be cured.
CPLR 2221(a) discusses motions affecting prior orders. It states, in relevant part,
the following:
A motion for leave to renew or to reargue a prior
motion, for leave to appeal from, or to stay, vacate
or modiff, an order shall be made, on notice, to the
judge who signed the order, unless he or she is for
any reason unable to hear it....
CPLR 2221(d) sets forth the procedures for making a motion for leave to reargue.
That sbction provides as follows:
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A motion for leave to reargue:
1. shall be identified specifically as such;
2. shall be based upon matters of facts or law
allegedly overlooked or misapprehended by the
court in determining the prior motion, but shall not
include any matters of fact not offered on the prior
motion; and
3. shall be made within thirty days after service of a
copy of the order determining the prior motion and
written notice of its entry. ...
RELEVANT ST OF'FACTS
The relevant statement of facts are set forth in the accompanying Hui Affirm. at
nn rc-22 and the exhibits annexed thereto, and this Court is respectfully refened thereto
ARGUMENT
POINT I
THE COURT ERRED IN GRANTING THE
PETITION WITHOUT OPPOSITION WHEN
RESPONDENTS TIMELY SERVED,
SUBMITTED AND FILED OPPOSITION TO
THE PETITION
The Court incorrectly granted the petition after inadvertently overlooked
Respondents' timely served, submitted and filed oppositions to the petition. See Exhibits "B"
and "G" through "K." Specifically, in the Decision and Order, the Court granted the underlying
petition "without opposition (respondents requested, and received, an adjournment of the return
date but neither ever submitted opposition)." Exhibit "A."
In the Court Notice, which was issued after the Decision and Order, the Court
concedes "that respondents did, in fact, file opposition to the petition although the files were
uploaded to NYSCEF instead of submitted via hard copies in what was initially filed as a paper
case." Exhibit "C." See also Exhibit "B" (NYSCEF Doc. #s 3-62).
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Further, the Court noted that "respondents should make the proper motion so that
the Court can consider this case on the merits and, ifsuch a motion is made, include Petitioner's
papers so that the full record is included on NYSCEF." Id.
As such, HPD brings the instant motion, annexing the full record, including
Petitioner's papers, so that the Court can consider the underlying Article 78 proceeding on the
merits. See Exhibits "C" and "G" through "K."
Respondents did in fact timely serve, submit and file oppositions to the petition
and the petition should not have been "granted without opposition" in the Decision and Order.
See Exhibits "A" and "B" (I{YSCEF Doc. #s 3-62). Thus, this Court should grant HPD's instant
motion to vacate, correct and modifu the Decision and Order accordingly, pursuant to CPLR
Rule 5015(a) and g 5019(a); andlor, in the alternative, as the Court overlooked Respondents'
opposition to the petition (see Exhibits "8" and "C"), it should now consider the underlying
Article 78 proceeding, including Respondents' opposition, on its merits and vacate, correct and
modifr the Decision and Order accordingly, pursuant to CPLR Rule 222I(d). See Exhibits "A,"
ttB" and ttC."
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CONCLUSION
For all these reasons, and for the reasons set forth in the accompanying Hui
Affirm., this Court should grant Respondent HPD's motion to vacate and modi$ the Decision
and Order, pursuant to CPLR Rule 5015(a) and Section 5019(a), and to conect mistakes in the
Decision and Order (Exhibit "A"), which erroneously indicates that Respondents did not submit
opposition to the Verified Petition; andlor, in the alternative, for an order, pursuant to CPLR
Rule 2221(d), granting Respondent HPD's instant motion for leave to reargue the underlying
Article 78 proceeding, and upon such reargument, to vacate and modifu the Decision and Order
to reflect that Respondents in fact submitted opposition to the Verified Petition and for the Court
to issue a ruling on the merits; and, upon review and consideration of Respondents' submissions,
for an Order denying the petition and dismissing the underlying proceeding, and grant such other
,(
and further reliefas the Court deems just and proper.
Dated New York, New York
December 21,2022
HON. SYLVIA O. HINDS-RADIX
Corporation Counsel of the
City of New York
Attorney for Respondent HPD
100 Church Street, Room 5-169
New York, New York 10007
(2r2) 3s6-
By
J HUI
Assistant Corporation Counsel
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Preview
FILED: NEW YORK COUNTY CLERK 12/21/2022 06:35 PM INDEX NO. 100480/2022 NYSCEF DOC. NO. 137 RECEIVED NYSCEF: 12/21/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK X In the Matter of the Application of SARAH SIEGEL, Petitioner, For a Judgment Pursuant to Article 78 of the Civil Practice Index No. 100820/22 Law and Rules, (Assigned to: J. Bluth) -against NEW YORK CITY DEPARTMENT OF HOUSING PRESERVATION AND DEVELOPMENT, and AGUILAR GARDENS, fNC., Respondents. X MEMORANDUM OF LAW OF RESPONDENT HPD HON. SYLVIA O. HINDS-RADIX Corporation Counsel of the City of New York Attorney for Respondent HPD 100 Church Street New York, New York 10007 Tel: (212) 356-2209 Fax (212) 356-2059 MICHELLE GOLDBERG-CAHN, SHERYL NEUFELD, JACQUELINE HUI of Counsel. December 21,2022 1 of 7 FILED: NEW YORK COUNTY CLERK 12/21/2022 06:35 PM INDEX NO. 100480/2022 NYSCEF DOC. NO. 137 RECEIVED NYSCEF: 12/21/2022 PRELIMINARY STATEMENT Petitioner commenced the underlying Article 78 proceeding seeking, inter alia, an order vacating the New York City Department of Housing Preservation and Development's ("HPD") determination denying Petitioner's appeal for succession rights to Apartment 8N in the building located at 7l-50 Parsons Boulevard, Flushing, New York 11367 (the "subject apartment") ("HPD's Decision" or "HPD's final determination"), which is governed by Article II of the New York Private Housing Finance Law ("PHFL"), also known as the Mitchell-Lama Law In the instant motion, HPD seeks an order, pursuant to Rule 5015(a) and Section 5019(a) of the New York Civil Practice Law and Rules ("CPLR"), to correct mistakes in the Court's Decision and Order, dated October 24, 2022 ("the Decision and Order"), which erroneously states that Respondents HPD and Aguilar Gardens, Inc. ("Aguilar") did not submit opposition to the Verified Petition ("petition"); or, in the alternative, an order, pursuant to CPLR p1ule 2221(d), granting HPD's motion for leave to reargue the underlying Article 78 proceeding, and upon such reargument, modification of the Decision and Order to reflect that Respondents in fact timely served, submitted and filed opposition to the petition and for the Court to issue a ruling on the merits. A copy of the Decision and Order is annexed to the accompanying Affirmation of Jacqueline Hui in Support of the Motion to Cure Mistakes in the Decision and Order, dated December 21,2022 ("Hui Affirm.") as Exhibit "A."l Even though Respondents did timely serve, submit and file their opposition papers via the New York State Electronic Filing System ("NYSCEF"), due to an administrative I All exhibits referenced herein are annexed to the accompanying Hui Affirm. and this Court is respectfully referred thereto. 2 2 of 7 FILED: NEW YORK COUNTY CLERK 12/21/2022 06:35 PM INDEX NO. 100480/2022 NYSCEF DOC. NO. 137 RECEIVED NYSCEF: 12/21/2022 delay and oversight, the Court erroneously granted the petition "without opposition (respondents requested, and received, an adjournment of the return date but neither ever submitted ((A,)) opposition)." Exhibits "B)) and'0C." In the Court Notice, dated November 15, 2022 ("Court Notice"), the Court concedes "that respondents did, in fact, file opposition to the petition although the files were uploaded to NYSCEF instead of submitted via hard copies in what was initially filed as a paper case." Exhibit "C." Further, the Court Notice states, in pertinent part, "respondents should make the proper motion so that the Court can consider this case on the merits and, if such a motion is made, include petitioner's papers so that the full record is included on NYSCEF." Id. For the reasons set forth herein, and in the accompanying Hui Affirm., since Respondents did in fact timely serve, submit and oppose the petition (see Exhibit "B"), the petition should not have been "granted without opposition," and the mistake in the Decision and Order (see Exhibit "A") should be cured pursuant to CPLR Rule 5015(a) and Section 5019(a); or, in the alternative, HPD's motion for leave to reargue now consider the underlying Article 78 proceeding on its merits, and to correct and modify the Decision and Order accordingly, pursuant to CPLR Ptule222I(d). RELEVANT STATUTORY FRAMEWORI( Grounds for Motion to Modifu a Prior Order Rule 5015 of the CPLR, entitled "Relief from judgment or order," reads, rn pertinent part, the following: (a) On motion. The court which rendered a judgment or order may relieve a party from it upon such terms as may be just, on motion of any interested person with such notice as the court may direct, upon the ground of: 3 3 of 7 FILED: NEW YORK COUNTY CLERK 12/21/2022 06:35 PM INDEX NO. 100480/2022 NYSCEF DOC. NO. 137 RECEIVED NYSCEF: 12/21/2022 1. excusable default, if such motion is made within one year after service of a copy of the judgment or order with written notice of its entry upon the moving party, or, if the moving party has entered the judgment or order, within one year after such entry; or 2. newly-discovered evidence which, if introduced at the triaI, would probably have produced a different result and which could not have been discovered in time to move for a new trial under section 4404; or 3. fraud, misrepresentation, or other misconduct of an adverse party; or 4. lack ofjurisdiction to render the judgment or order; or 5. reversal, modification or vacatur of a prior judgment or order upon which it is based.... Section 5019 of the CPLR, entitled "Validity and correction ofjudgment or order; amendment of docket," reads, in relevant part, as follows: a. Validity and correction of judgment or order. A judgment or order shall not be stayed, impaired or affected by any mistake, defect or irregularity in the papers or procedures in the action not affecting a substantial right of a party. A trial or an appellate court may require the mistake, defect or irregularity to be cured. CPLR 2221(a) discusses motions affecting prior orders. It states, in relevant part, the following: A motion for leave to renew or to reargue a prior motion, for leave to appeal from, or to stay, vacate or modiff, an order shall be made, on notice, to the judge who signed the order, unless he or she is for any reason unable to hear it.... CPLR 2221(d) sets forth the procedures for making a motion for leave to reargue. That sbction provides as follows: 4 4 of 7 FILED: NEW YORK COUNTY CLERK 12/21/2022 06:35 PM INDEX NO. 100480/2022 NYSCEF DOC. NO. 137 RECEIVED NYSCEF: 12/21/2022 A motion for leave to reargue: 1. shall be identified specifically as such; 2. shall be based upon matters of facts or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion; and 3. shall be made within thirty days after service of a copy of the order determining the prior motion and written notice of its entry. ... RELEVANT ST OF'FACTS The relevant statement of facts are set forth in the accompanying Hui Affirm. at nn rc-22 and the exhibits annexed thereto, and this Court is respectfully refened thereto ARGUMENT POINT I THE COURT ERRED IN GRANTING THE PETITION WITHOUT OPPOSITION WHEN RESPONDENTS TIMELY SERVED, SUBMITTED AND FILED OPPOSITION TO THE PETITION The Court incorrectly granted the petition after inadvertently overlooked Respondents' timely served, submitted and filed oppositions to the petition. See Exhibits "B" and "G" through "K." Specifically, in the Decision and Order, the Court granted the underlying petition "without opposition (respondents requested, and received, an adjournment of the return date but neither ever submitted opposition)." Exhibit "A." In the Court Notice, which was issued after the Decision and Order, the Court concedes "that respondents did, in fact, file opposition to the petition although the files were uploaded to NYSCEF instead of submitted via hard copies in what was initially filed as a paper case." Exhibit "C." See also Exhibit "B" (NYSCEF Doc. #s 3-62). 5 5 of 7 FILED: NEW YORK COUNTY CLERK 12/21/2022 06:35 PM INDEX NO. 100480/2022 NYSCEF DOC. NO. 137 RECEIVED NYSCEF: 12/21/2022 Further, the Court noted that "respondents should make the proper motion so that the Court can consider this case on the merits and, ifsuch a motion is made, include Petitioner's papers so that the full record is included on NYSCEF." Id. As such, HPD brings the instant motion, annexing the full record, including Petitioner's papers, so that the Court can consider the underlying Article 78 proceeding on the merits. See Exhibits "C" and "G" through "K." Respondents did in fact timely serve, submit and file oppositions to the petition and the petition should not have been "granted without opposition" in the Decision and Order. See Exhibits "A" and "B" (I{YSCEF Doc. #s 3-62). Thus, this Court should grant HPD's instant motion to vacate, correct and modifu the Decision and Order accordingly, pursuant to CPLR Rule 5015(a) and g 5019(a); andlor, in the alternative, as the Court overlooked Respondents' opposition to the petition (see Exhibits "8" and "C"), it should now consider the underlying Article 78 proceeding, including Respondents' opposition, on its merits and vacate, correct and modifr the Decision and Order accordingly, pursuant to CPLR Rule 222I(d). See Exhibits "A," ttB" and ttC." 6 6 of 7 FILED: NEW YORK COUNTY CLERK 12/21/2022 06:35 PM INDEX NO. 100480/2022 NYSCEF DOC. NO. 137 RECEIVED NYSCEF: 12/21/2022 CONCLUSION For all these reasons, and for the reasons set forth in the accompanying Hui Affirm., this Court should grant Respondent HPD's motion to vacate and modi$ the Decision and Order, pursuant to CPLR Rule 5015(a) and Section 5019(a), and to conect mistakes in the Decision and Order (Exhibit "A"), which erroneously indicates that Respondents did not submit opposition to the Verified Petition; andlor, in the alternative, for an order, pursuant to CPLR Rule 2221(d), granting Respondent HPD's instant motion for leave to reargue the underlying Article 78 proceeding, and upon such reargument, to vacate and modifu the Decision and Order to reflect that Respondents in fact submitted opposition to the Verified Petition and for the Court to issue a ruling on the merits; and, upon review and consideration of Respondents' submissions, for an Order denying the petition and dismissing the underlying proceeding, and grant such other ,( and further reliefas the Court deems just and proper. Dated New York, New York December 21,2022 HON. SYLVIA O. HINDS-RADIX Corporation Counsel of the City of New York Attorney for Respondent HPD 100 Church Street, Room 5-169 New York, New York 10007 (2r2) 3s6- By J HUI Assistant Corporation Counsel 7 7 of 7