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FILED: NEW YORK COUNTY CLERK 06/30/2023 04:39 PM INDEX NO. 153346/2023
NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 06/30/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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In the Matter of the Application of
101-01 ONE GROUP, LLC,
Index No.: 153346/2023
Petitioner,
For a Judgment Pursuant to Article 78 of the Civil
Practice Law and Rules,
-against-
NEW YORK CITY DEPARTMENT OF HOUSING
PRESERVATION AND DEVELOPMENT and NEW
YORK CITY DEPARTMENT OF FINANCE,
Respondents.
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MEMORANDUM OF LAW IN SUPPORT OF
RESPONDENTS’ CROSS-MOTION TO
DISMISS THE PETITION
HON. SYLVIA HINDS-RADIX
Corporation Counsel of the
City of New York
Attorney for Respondents
100 Church Street
New York, New York 10007
ikendric@law.nyc.gov
MICHELLE GOLDBERG-CAHN
MELANIE V. SADOK,
ISABELLA J. KENDRICK,
Of Counsel.
June 29, 2023
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PRELIMINARY STATEMENT
Respondents New York City Department of Housing Preservation and
Development (“HPD”) and the New York City Department of Finance (“DOF”), by their attorney,
HON. SYLVIA O. HINDS-RADIX, Corporation Counsel of the City of New York, submit this
Memorandum of Law in support of their Cross-Motion to Dismiss the Petition.
This Article 78 proceeding stems from Petitioner’s failure to comply with
requirements relating to a real property tax benefit program (known as the 421-a Tax Exemption
Program) for a property located at 101-01 39th Avenue, Queens, NY 11368 (Block 1767, Lot 59)
(“subject premises”). The 421-a Tax Exemption Program requires that the owner of a rental
multiple dwelling building receiving benefits thereunder register the building with the New York
State Division of Housing and Community Renewal (“DHCR”) on an annual basis. After applying
for and receiving a Final Certificate of Eligibility for 421-a benefits, Petitioner failed to register
the building located at the subject premises for the years 2017 through 2021. HPD notified
Petitioner of this failure to register and that failure to correct such violation would result in
revocation of the 421-a Tax Exemption Program benefits. Petitioner did not correct the violation
and HPD subsequently revoked Petitioner’s benefits.
In this case, on July 27, 2022, HPD issued its Final Determination Notice revoking
Petitioner’s 421-a Tax Exemption Program benefits, and mailed the notice on the same day to the
required addresses set forth in Section 39-05 of Chapter 39 of Title 28 of the Rules of the City of
New York (“RCNY”). Pursuant to Title 28 RCNY § 39-05, “such notice shall be deemed to have
been given upon the third day after such notice has been deposited in the United States mail.”
Therefore, Petitioner was required to bring an Article 78, at the latest, within four months of July
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30, 2022. As Petitioner did not commence the instant proceeding until April 12, 2023, its challenge
is time-barred. See Civil Practice Law and Rules (“CPLR”) § 217(1).
Thus, the Court should grant Respondents’ cross-motion to dismiss the instant
Petition (i) pursuant to Rule 3211(a)(5) and Section 217(1) of the CPLR, dismissing the Petition
as time-barred by the applicable four-month statute of limitations; (ii) and for such other and
further relief as this Court may deem just, proper and equitable.
STATUTORY FRAMEWORK
The 421-a Program
In 1971, the New York State Legislature enacted Section 421-a of the Real Property
Tax Law (“RPTL”) to spur housing development in New York City at a time when housing market
conditions were dire. To incentivize development of permanent housing, a program under RPTL
§ 421-a(1-15) 1, New York City Administrative Code (“Administrative Code”) §§ 11-245–11-
245.1-b 2, and Chapter 6 of Title 28 of the Rules of the City of New York (“RCNY”), provides tax
exemptions for new housing development and certain eligible conversions throughout New York
City (hereinafter the “421-a Tax Exemption Program”). The 421-a Tax Exemption Program
provides a partial exemption from local real property taxes for newly-constructed multiple
dwellings and certain eligible conversions meeting the statutory and regulatory qualifications.
During the period of exemption, the owner continues to pay real property taxes
based on the assessed value of the land and any improvements thereon in effect during the tax year
The State legislature enacted two laws that amended RPTL § 421-a: Chapter 20 of the Laws of 2015, which
1
took effect June 15, 2015, and Chapter 59 of the Law of 2017, which took effect April 10, 2017. The
amended version of the statutory framework, to the extent these amendments affect the issuance of 421-a
Tax Exemption Program benefits to projects that commenced construction on or before December 31,
2015, is referenced herein.
2
Administrative Code § 11-245.1-b was effective from December 28, 2007 to December 28, 2010.
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prior to the commencement of construction of the new multiple dwelling. See RPTL §§ 421-
a(2)(a) & 421-a(2)(b).
Administrative Code Section 11-245 et seq., sets forth the City’s restrictions,
limitations, and conditions on the eligibility for, and scope or amount of tax exemption benefits
pursuant to the 421-a Tax Exemption Program.
HPD’s Authority to Decide Eligibility for Tax Exemption Benefits and to Promulgate Rules
Pursuant to RPTL § 421-a(3)(a) and City Charter § 1802(6)(b), HPD is the “local
housing agency” charged with administering the 421-a Tax Exemption Program in New York City.
Specifically, RPTL § 421-a(3)(a) provides that, in the City of New York, “the term ‘housing
agency’ shall mean only [the] department of housing preservation and development.” HPD
determines eligibility under the 421-a Tax Exemption Program and promulgates rules to carry out
this function. See City Charter § 1802(6)(b); RPTL § 421-a(3); Administrative Code § 11-245(e).
HPD’s rules regarding tax exemptions pursuant to RPTL § 421-a(1-15) and Administrative Code
§ 11-245 et seq. are set forth in Title 28, Chapter 6 of the RCNY.
The Department of Finance (“DOF”), the City’s tax assessor, 3 may not process an
application for the 421-a Tax Exemption Program unless such application is accompanied by a
certificate reflecting that HPD has found the applicant eligible, known as a Final Certificate of
Eligibility (“FCE”). See RPTL § 421-a(3)(a).
Application for, and Issuance of, a Final Certificate of Eligibility
If a building is being operated as a rental building, HPD cannot issue an FCE until
it determines the initial adjusted monthly rents for the rental dwelling units of a multiple dwelling.
Title 28 RCNY § 6-04(a) provides, in pertinent part, as follows:
3
See City Charter § 1504.
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No certification of eligibility shall be issued by the
Department until the Department determines the
initial adjusted monthly rent to be paid by tenants
residing in rental dwelling units contained within the
multiple dwelling.
For rental buildings, the applicant must submit evidence satisfactory to HPD that
the owner has registered any rental dwelling units within the multiple dwelling with the New York
State Division of Housing and Community Renewal (“DHCR”). Additionally, applicants must
provide proof that the multiple dwelling has been registered in accordance with Article 2 of
Subchapter 4 of the Housing Maintenance Code, codified at Administrative Code §§ 27-2097
through 27-2109.2. See 28 RCNY 6-05(d)(1)(vii). Accordingly, the owner of a multiple dwelling
must “file a new registration statement annually.” Admin. Code § 27-2097(c).
Upon its receipt of the application for a FCE and either a Temporary Certificate of
Occupancy for all residential areas in the multiple dwelling or a Permanent Certificate of
Occupancy, HPD shall make a determination as to whether a multiple dwelling is entitled to
benefits under the 421-a Tax Exemption Program for the post-construction period. Upon its
determination that a multiple dwelling is entitled to such benefits for the post-construction period,
the Department shall issue an FCE. See 28 RCNY § 6-05(e)(2).
Eligibility Requirements Pertaining to Rent Regulatory Requirements
RPTL § 421-a(2)(f) explicitly states that dwelling units being operated as rentals in
properties receiving a 421-a Tax Exemption Program benefit must be properly rent stabilized for
the entire time during which they are receiving such benefits, as follows:
Notwithstanding the provisions of any local law for
the stabilization of rents in multiple dwellings or the
emergency tenant protection act of nineteen seventy-
four, the rents of a unit shall be fully subject to
control under such local law or such act, unless
exempt under such local law or such act from control
by reason of the cooperative or condominium status
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of the unit, for the entire period during which the
property is receiving tax benefits pursuant to this
section for the period any such applicable law or act
is in effect, whichever is shorter.
(Emphasis added).
Additionally, Title 28 RCNY § 6-02(g)(2) provides that to be eligible for 421-a Tax
Exemption Program benefits, multiple dwellings must meet rent regulatory requirements during
the entire period for which they are receiving tax benefits pursuant to the 421-a program. That
section provides, in pertinent part, as follows:
(g) Rent regulatory requirements. To be eligible
for partial tax exemption the land upon which the
eligible project is located must meet the following
letting, rental and occupancy requirements:
***
(2) Notwithstanding the provisions of any local law
for the stabilization of rents in multiple dwellings or
the Emergency Tenant Protection Act of 1974, the
rents of a unit shall be fully subject to regulation
under such local law or such Act, unless exempt
under such local law or such act from regulation by
reason of the cooperative or condominium status of
the unit, for the entire period during which the
property is receiving tax benefits pursuant to the Act,
or for the period any such applicable local law or
such Act is in effect, whichever is shorter . . . .
The terms “multiple dwelling” and “building” are defined together under Title 28
RCNY § 6-01(c) as “a dwelling which is, or is to be, lawfully occupied as the residence or home
of three or more families living independently of one another, whether individual dwelling units
herein are rented or owned as a cooperative or condominium.”
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HPD’s Authority to Revoke Tax Benefits
Pursuant to Title 28 RCNY § 39-02(a), HPD may revoke a tax benefit for cause at
any time. The terms “revocation” and “revoke” are defined under Title 28 RCNY § 39-01 as
follows:
“Revocation” or “Revoke” shall mean any partial or
total suspension, reduction, termination or
revocation of any Tax Benefit which takes effect as
of a date which precedes the Expiration Date of such
Tax Benefit, except where State law specifically
authorizes the termination of one Tax Benefit upon
the commencement of another Tax Benefit.
The term “cause” is defined under Title 28 RCNY § 39-01 as “any Violation,
Misrepresentation, Omission, Failure, or Discrimination, without regard to the date upon which
HPD discovers such Violation, Misrepresentation, Omission, Failure, or Discrimination.”
Title 28 RCNY § 39-02(b) outlines the procedure by which HPD may revoke a tax
benefit for cause and provides that HPD “shall deliver an Initial Notice to the Taxpayer by the
method provided herein for delivery of notices.” Pursuant to Title 28 RCNY § 39-05, HPD is
required to deliver all Initial Notices and Determination Notices to the taxpayer by mail to five
specified addresses:
HPD shall deliver all Initial Notices, Pre-Hearing
Notices, Hearing Notices, and Determination
Notices to the Taxpayer by mail to (i) the address to
which DOF delivers real property tax bills for the
Noticed Property, (ii) the last address indicated in
documents recorded in the office of the City Register
for any Taxpayer holding fee title to the Noticed
Property, (iii) the last address indicated in documents
recorded in the office of the City Register for any
Taxpayer holding a mortgage on the Noticed
Property, (iv) the address of any owner registered for
the Noticed Property in accordance with Article 2 of
subchapter 4 of Chapter 2 of Title 27 of the
Administrative Code, and (v) the address of any
agent registered for the Noticed Property in
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accordance with Article 2 of subchapter 4 of Chapter
2 of Title 27 of the Administrative Code. Any such
notice shall be deemed to have been given upon the
third day after such notice has been deposited in the
United States mail.
(emphasis added).
The term “initial notice” is defined under Title 28 RCNY § 39-01 as follows:
“Initial Notice” shall mean a written notice from
HPD to the Taxpayer stating the intention to Revoke
a Tax Benefit for Cause and the proposed Revocation
Date, identifying the Property and Tax Benefit
affected, briefly describing the alleged Cause for
Revocation of such Tax Benefit, stating the
Comment Period, and providing an address for the
submission of Comments during the Comment
Period.
The term “Determination Notice” is defined under Title 28 RCNY § 39-01 as
follows:
"Determination Notice" shall mean a written notice
from HPD to the Taxpayer delivered after the
Hearing or, if there is no Hearing, after the Comment
Period stating the determination of the Assistant
Commissioner regarding whether a Tax Benefit will
be Revoked or will remain in effect. Any
Determination Notice stating that a Tax Benefit will
be Revoked shall specify the Revocation Date.
The term “taxpayer” is defined under Title 28 RCNY § 39-01 as follows:
“Taxpayer” shall mean (i) the individual or entity
located at the address to which DOF sends tax bills
for the applicable Property, (ii) any current holder of
fee title to such Property whose interest is clearly
recorded in the office of the City Register in the
applicable borough, and (iii) any current mortgagee
of such Property whose mortgage interest in such
Property is clearly recorded in the office of the City
Register in the applicable borough.
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During the Comment Period, the taxpayer may submit comments to HPD Then,
HPD may meet with such taxpayer if such comments contain either (i) credible evidence that a
Factual Issue exists, or (ii) a proposed cure for the alleged Cause for Revocation which HPD
determines may be reasonably practicable. See 28 RCNY § 39-02(c). The term “factual issues” is
defined in Title 28 RCNY § 39-01 as “one or more issues of fact which, if resolved in favor of the
Taxpayer, would require the conclusion that Cause for Revocation does not exist.”
However, if HPD does not receive any material comments from the taxpayer during
the comment period, HPD shall deliver a determination notice to the taxpayer stating that the tax
benefit has been revoked. Title 28 RCNY § 39-02(f) provides as follows:
If HPD does not enter into a Cure Agreement with
the Taxpayer and either receives no Comments
during the Comment Period or determines after
reviewing such Comments that there is no Factual
Issue concerning the Cause for Revocation, HPD
shall deliver a Determination Notice to the Taxpayer
by the method provided herein for delivery of notices
stating that the Tax Benefit has been Revoked as of
the Revocation Date set forth therein.
STATEMENT OF FACTS
The Subject Premises and the Application for the 421-a Tax Exemption Program
According to records filed with the City Register of the City of New York,
Petitioner is the owner of the property located at 101-01 39th Avenue, Queens, NY 11368 (Block
1767, Lot 59) (“subject premises”). On or about September 15, 2011, Petitioner submitted to HPD
an Application for a Preliminary Certificate of Eligibility (“PCE”) for 421-a(1-15) benefits for the
subject premises (“PCE Application”). See Exhibit “A.” 4 On September 27, 2011, HPD approved
All references to exhibits in this memorandum of law refer to the exhibits annexed to the Kendrick
4
Affirmation.
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the application and issued a PCE for the subject premises. See Exhibit “B.” On or about July 8,
2014, Petitioner filed an application for an FCE (“FCE Application”). See Exhibit “C.” On or
about May 30, 2017, HPD issued an FCE for the subject premises. See Exhibit “D.”
April 14, 2022 Initial Notice
On or about April 14, 2022, HPD sent an Initial Notice, as defined by 28 RCNY §
39-01, titled “NOTICE OF IMPENDING REVOCATION,” (“NOIR”) to the required addresses
set forth in 28 RCNY § 39-05, as follows:
101-01 One Group, LLC, 101-01 39th Avenue, Corona, NY
11368 (“the last address indicated in documents recorded in the
office of the City Register for any Taxpayer holding fee title to the
Noticed Property,” and “the address of any owner registered for the
Noticed Property in accordance with Article 2 of Subchapter 4 of
Chapter 2 of Title 27 of the Administrative Code,” and “the address
of any agent registered for the Noticed Property in accordance with
Article 2 of Subchapter 4 of Chapter 2 of Title 27 of the
Administrative Code”);
New York Community Bank, 102 Duffy Avenue 3td Floor,
Hichsville, NY 11801 (the last address indicated in documents
recorded in the office of the City Register for any Taxpayer holding
a mortgage on the Noticed Property”); and
101-01 One Group, LLC, 4056 Junction Blvd., Corona, NY
11368-5837 (“the address to which DOF delivers real property tax
bills for the Noticed Property” and “the address of any owner
registered for the Noticed Property in accordance with Article 2 of
Subchapter 4 of Chapter 2 of Title 27 of the Administrative Code,”
and “the address of any agent registered for the Noticed Property in
accordance with Article 2 of Subchapter 4 of Chapter 2 of Title 27
of the Administrative Code”).
See Exhibit “E.” HPD determined the required mailing addresses pursuant to 28 RCNY § 39-05
by reviewing specific documentation, including the deed for the subject premises recorded with
the City Register; a Property Tax Bill Quarterly Statement dated February 19, 2022; the mortgage
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recorded for the subject premises with the City Register; and a Multiple Dwelling Registration
(“MDR”) dated August 9, 2019. See Exhibit “F.” 5
The Initial Notice stated, in pertinent part:
A review of rent registration records indicates
that you have failed to file 2017-2021 annual
building and apartment registrations for the
Property listed above. This is a violation of 421-a
tax benefit requirements.
As a recipient of the partial tax exemption pursuant
to Section 421-a(1)-(15) of the Real Property Tax
Law (“Tax Benefit”), the Property and its dwelling
units are subject to rent stabilization and must be
annually registered with New York State Division of
Housing and Community Renewal (“DHCR”) for
every year since the building completed construction
through and including the current registration cycle.
This includes housing accommodations that operate
as rentals as well as owner-occupied units.
Failing to register with DHCR violates New York
Real Property Tax Law Section 421-a(2)(f) and
Section 6-02(g) of Title 28 of the Rules of the City
of New York.
HPD now seeks to retroactively revoke the 421-a
Tax Benefit from the date upon which the
Property initially began receiving such Tax
Benefit for failing to file the 2018-2021 annual
registrations for the building and its dwelling
units (“Cause”).
TO CURE YOUR VIOLATION AND AVOID
REVOCATION OF YOUR 421-a TAX
BENEFIT, YOU MUST COMPLETE ALL OF
THE FOLLOWING BY JULY 13, 2022:
5
While Admin. Code § 27-2097(c) requires the owner of the subject property to file an MDR annually, the
most recent MDR filed prior to the NOIR and the Final Determination Notice is dated August 9, 2019, and
was received by HPD on August 28, 2019. See Exhibit “F.” After the NOIR and Final Determination Notice
were mailed, Petitioner filed another MDR, dated August 2, 2022, which was received by HPD on August
28, 2022. See Exhibit “G.”
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1) Complete the 2017-2021 Annual
Registration:
…
2) After completing the registration process,
please contact HPD at
421aRentRegistration@hpd.nyc.gov or 212-863-
7676.
If HPD confirms that you have correctly completed
the registration process in a timely manner, your Tax
Benefit will not be revoked.
ALTERNATIVELY, YOU MAY SUBMIT
WRITTEN COMMENTS AND/OR
INFORMATION TO HPD REGARDING THE
POTENTIAL CAUSE FOR REVOCATION ON
OR BEFORE JUNE 13, 2022.
…
If HPD (i) does not receive written comments and/or
information, … then HPD will deliver a
Determination Notice affirming that the Tax Benefit
has been revoked retroactively to the date upon
which the Property initially began to receive such
Tax Benefit, including, if applicable, revocation of
any Tax Benefit received for the period of
construction of the Property. Such revocation shall
require the repayment of all taxes that would have
been owed to the City absent the Tax Benefit.
Furthermore, such revocation does not exempt any
unit in the Property from the continuing obligation to
comply with the requirements of the Tax Benefit,
including rent stabilization.
HPD received no communication from Petitioner in response to the Notice of Impending
Revocation.
HPD’s Issuance of its Final Determination
After receiving no response to the Notice of Impending Revocation, HPD, by
Determination Notice dated July 27, 2022, informed Petitioner that the tax exemption pursuant to
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Section 421-a of the Real Property Tax Law for the subject premises was being revoked. HPD
mailed the Determination Notice to Petitioner at the required addresses set forth in 28 RCNY §
39-05. See Exhibit “H.” The Determination Notice provides, in relevant part, as follows:
On April 14, 2022, pursuant to 28 R.C.N.Y. Chapter
39, HPD mailed you a Notice of Impending
Revocation indicating that HPD intended to
retroactively revoke the Tax Benefit for failure to file
the 2018-2021 annual registrations for the Property
and its dwelling units (“Cause for Revocation”). In
accordance with 28 R.C.N.Y. § 39-02(c), the Notice
of Impending Revocation provided you until July
13, 2022 (“Documentation Deadline”) to cure the
Cause for Revocation, or to submit written
comments to HPD concerning the Cause for
Revocation.
HPD did not receive written comments and the Cause
for Revocation was not cured by the Documentation
Deadline. Therefore, in accordance with 28
R.C.N.Y. § 39-02(f), HPD has determined that the
Tax Benefit will be revoked and has instructed the
Department of Finance to retroactively revoke the
Tax Benefit as of January 1, 2018. Such revocation
shall require the repayment of all taxes from January
1, 2018 that would have been owed to the City absent
the Tax Benefit.
The foregoing constitutes HPD’s final agency
determination. Review of this determination is
available pursuant to Article 78 of the New York
Civil Practice Law and Rules.
Exhibit “H.” Thereafter, Petitioner commenced by Notice of Petition, dated April 12, 2023, and
Verified Petition, dated same, this Article 78 proceeding challenging HPD’s July 27, 2022
Determination Notice.
ARGUMENT
PETITIONER’S CHALLENGE TO HPD’S
DETERMINATION TO REVOKE THE 421-A
BENEFITS FOR THE SUBJECT PREMISES IS
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TIME-BARRED BY THE APPLICABLE
STATUTE OF LIMITATIONS.
Petitioner’s challenge to HPD’s determination to revoke the 421-a Tax Exemption
Program benefits for the subject premises is time-barred by the applicable four-month statute of
limitations for challenging an administrative determination set forth in CPLR § 217(1). Therefore,
this proceeding should be dismissed.
CPLR § 217(1) prescribes the applicable statute of limitations period for CPLR
Article 78 proceedings, which are brought for the purpose of challenging an agency’s final
determination. It requires a petitioner to commence a proceeding against an administrative body
or officer “within four months after the determination to be reviewed becomes final and binding.”
CPLR § 217(1); see also Solnick v. Whalen, 49 N.Y.2d 224, 232 (1980) (“The reason for the short
statute is the strong policy, vital to the conduct of certain kinds of governmental affairs, that the
operation of government not be trammeled by stale litigation and stale determinations.”) (internal
citation omitted). This four-month statutory period commences immediately after the aggrieved
party is notified. See Carter v. New York, 95 N.Y.2d 267, 272 (2000) (dismissing an Article 78
petition as time-barred after holding that “the four-month limitations period began to run when
notice of the appeals unit decision was mailed to petitioner”); Edmead v. McGuire, 67 N.Y.2d 714,
716 (1986); Biondo v. N.Y. State Bd. Parole, 60 N.Y.2d 832, 834 (1983). Accordingly, a court
must strictly apply the applicable statute of limitations and dismiss an Article 78 proceeding as
untimely if it is not commenced within the limitations period. See Best Payphones, Inc. v. Dep’t
of Info. Tech. & Telecomms., 5 N.Y.3d 30, 34 (2005); Marino v. Proch, 258 A.D.2d 628, 628 (2d
Dep’t 1999) (dismissing an action as time-barred where the plaintiff commenced the action by
filing one day beyond the expiration of the statute of limitations period).
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Petitioner is challenging HPD’s determination to revoke its 421-a Tax Exemption
Program benefits. On July 27, 2022, HPD issued a Final Determination Notice which informed
Petitioner that the tax exemption pursuant to Section 421-a of the Real Property Tax Law for the
subject premises was being revoked. See Exhibit “H.” HPD mailed this determination to the
required addresses set forth in 28 RCNY § 39-05 on July 27, 2022, as shown by its affidavit of
mailing. See id. Pursuant to 28 RCNY § 39-05, the Notice was “deemed to have been given” on
July 30, 2022, “the third day after such notice has been deposited in the United States mail.” 28
RCNY § 39-05. Consequently, the four-month statute of limitations ran out on November 30,
2022. Petitioner only commenced this proceeding on April 12, 2023, months after the statute of
limitations period had ended.
Petitioner alleges that it did not receive the July 27, 2022 Final Determination,
Petition ¶ 26. However, that claim is contradicted by the administrative record, which shows that
HPD mailed the determination to the required addresses set forth in 28 RCNY § 39-05. See id. In
this case, HPD sent the Final Determination Notice to three distinct addresses, as two of the
addresses encompassed more than one category listed in 28 RCNY § 39-05, as discussed in-detail
below. See Exhibit “H.” Petitioner states that, “in order to establish that notice had been provided
as required under the RCNY, HPD would have to provide copies of all five (5) of the notices
purportedly sent to all five (5) of the addresses identified under Title 28 RCNY § 39-05.” Petition
¶ 50. That is exactly what HPD has provided, as detailed below.
The first of the five addresses set forth in 28 RCNY § 39-05 is “the address to which
DOF delivers real property tax bills for the Noticed Property.” 28 RCNY § 39-05(i). Petitioner
concedes that 4056 Junction Blvd., Corona, NY 11368-5837 is the mailing address listed on
Property Tax Bill quarterly statements sent by DOF for the subject premises. Petition ¶ 25;
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Petitioner’s Exhibit “B”; see also Exhibit “F” at 1–2. Contrary to Petitioner’s assertion otherwise,
the affidavit of service for the Final Determination shows that the Final Determination was sent to
that address. See Petition ¶ 26; Exhibit “H.”
The second address set forth 28 RCNY § 39-05 is “the last address indicated in
documents recorded in the office of the City Register for any Taxpayer holding fee title to the
Noticed Property.” 28 RCNY § 39-05(ii). Petitioner concedes that the “Grantee/Buyer” Address
listed in the most recent deed recorded with the City Register is 101-01 39th Avenue, Corona, NY
11366. Petition ¶ 25; Petitioner’s Exhibit “C”; see also Exhibit “F” at 3. HPD’s affidavit of service
for the Final Determination shows that HPD mailed a copy of the notice to that address. Exhibit
“H.” Petitioner also concedes that 101-01 39th Avenue, Corona, NY 11366, is “the address of any
owner registered for the Noticed Property in accordance with Article 2 of Subchapter 4 of Chapter
2 of Title 27 of the Administrative Code,” and thus, also constitutes the fourth address to which
HPD must mail notices. 28 RCNY § 39-05(iv); Petition ¶ 25; Exhibit “F” at 29.
The third address set forth 28 RCNY § 39-05 is “the last address indicated in
documents recorded in the office of the City Register for any Taxpayer holding a mortgage on the
Noticed Property.” 28 RCNY § 39-05(iii). HPD’s rules define the Taxpayer for this address as
“any current mortgagee of such Property whose mortgage interest in such Property is clearly
recorded in the office of the City Register in the applicable borough.” 28 RCNY § 39-01. Pursuant
to 28 RCNY § 39-05(iii), HPD mailed a copy of the Final Determination to mortgage holder New
York Community Bank, 102 Duffy Avenue 3rd Floor, Hicksville, NY 11801. See Exhibit “F” at
12 (mortgage document recorded with the City Register for the subject premises); Exhibit
“H.” Petitioner misinterprets 28 RCNY § 39-05(iii) to require HPD to mail a copy of the Final
Determination to the mortgagor of the property at 4056 Junction Blvd., Corona, NY 11368-5837,
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rather than the mortgagee. Petition ¶ 25. While this is incorrect, HPD did in fact mail a Final
Determination Notice to 4056 Junction Blvd., Corona, NY 11368-5837, as it constitutes “the
address to which DOF delivers real property tax bills for the Noticed Property,” as discussed
above. 28 RCNY § 39-05(i); Exhibit “H.”
Finally, HPD’s rules also require mailings to the owner and managing agent
addresses registered in HPD’s Multiple Dwelling Registration (“MDR”) for the noticed property.
See 28 RCNY § 39-05(iv), (v) (“the address of any owner registered for the Noticed Property in
accordance with Article 2 of Subchapter 4 of Chapter 2 of Title 27 of the Administrative
Code,…the address of any agent registered for the Noticed Property in accordance with Article 2
of Subchapter 4 of Chapter 2 of Title 27 of the Administrative Code.”). Here, Petitioner concedes
that 101-01 39th Avenue, Corona, NY 11366, is the owner address listed on the most recent MDR
filed before the Final Determination. Exhibit “F” at 29; Petition ¶ 25. HPD’s affidavit of service
establishes that the Final Determination was mailed to that address. Exhibit “H.” The same MDR 6
also listed two addresses for the managing agent: 4056 Junction Blvd., Corona, NY 11368-5837
and 101-01 39th Avenue, Corona, NY 11366, both of which received mailed copies of the Final
Determination. See Exhibit “F” at 29; Exhibit “H.”
While Petitioner argues that a copy of the Final Determination should also have
been mailed to “Rising Real Estate Group LLC” as a managing agent for the property, Petition ¶
25, this entity was only registered as the managing agent in the MDR dated August 2, 2022, which
was received by HPD on August 26, 2022, approximately a month after HPD mailed the Final
Determination on July 27, 2022. See Exhibit “G”; see also Petitioner’s Exhibit “E.”
While Admin. Code § 27-2097(c) requires the owner of the subject property to file an MDR annually, the
6
most recent MDR filed prior to the Final Determination is dated August 9, 2019, and was received by HPD
on August 28, 2019. See Exhibit “F” at 29, 31.
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Petitioner’s self-interested assertions that it did not receive the notices, without
more, are not enough to rebut the presumption that the notices were properly mailed to Petitioner.
“[A] properly executed affidavit of service raises a presumption that a proper mailing occurred,
and a mere denial of receipt is not enough to rebut this presumption.” Matter of Ariel Servs., Inc.
v. N.Y.C. Envtl. Control Bd., 89 A.D.3d 415, 415 (1st Dep’t 2011) (quoting Kihl v. Pfeffer, 94
N.Y.2d 118, 122 (1999)). Thus, Petitioner’s assertion that it did not receive the mailed Final
Determination is without merit.
Therefore, as Petitioner commenced this proceeding more than four months after
the statute of limitations ran, Petitioner’s challenge to HPD’s determination to revoke its 421-a
Tax Exemption Benefits is time-barred Petitioner’s challenge must be dismissed pursuant to CPLR
§ 7804(f).
CONCLUSION
For all the above reasons, Respondents respectful
Preview
FILED: NEW YORK COUNTY CLERK 06/30/2023 04:39 PM INDEX NO. 153346/2023 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 06/30/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ----------------------------------------------------------------------X In the Matter of the Application of 101-01 ONE GROUP, LLC, Index No.: 153346/2023 Petitioner, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules, -against- NEW YORK CITY DEPARTMENT OF HOUSING PRESERVATION AND DEVELOPMENT and NEW YORK CITY DEPARTMENT OF FINANCE, Respondents. ------------------------------------------------------------------------X MEMORANDUM OF LAW IN SUPPORT OF RESPONDENTS’ CROSS-MOTION TO DISMISS THE PETITION HON. SYLVIA HINDS-RADIX Corporation Counsel of the City of New York Attorney for Respondents 100 Church Street New York, New York 10007 ikendric@law.nyc.gov MICHELLE GOLDBERG-CAHN MELANIE V. SADOK, ISABELLA J. KENDRICK, Of Counsel. June 29, 2023 1 of 19 FILED: NEW YORK COUNTY CLERK 06/30/2023 04:39 PM INDEX NO. 153346/2023 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 06/30/2023 PRELIMINARY STATEMENT Respondents New York City Department of Housing Preservation and Development (“HPD”) and the New York City Department of Finance (“DOF”), by their attorney, HON. SYLVIA O. HINDS-RADIX, Corporation Counsel of the City of New York, submit this Memorandum of Law in support of their Cross-Motion to Dismiss the Petition. This Article 78 proceeding stems from Petitioner’s failure to comply with requirements relating to a real property tax benefit program (known as the 421-a Tax Exemption Program) for a property located at 101-01 39th Avenue, Queens, NY 11368 (Block 1767, Lot 59) (“subject premises”). The 421-a Tax Exemption Program requires that the owner of a rental multiple dwelling building receiving benefits thereunder register the building with the New York State Division of Housing and Community Renewal (“DHCR”) on an annual basis. After applying for and receiving a Final Certificate of Eligibility for 421-a benefits, Petitioner failed to register the building located at the subject premises for the years 2017 through 2021. HPD notified Petitioner of this failure to register and that failure to correct such violation would result in revocation of the 421-a Tax Exemption Program benefits. Petitioner did not correct the violation and HPD subsequently revoked Petitioner’s benefits. In this case, on July 27, 2022, HPD issued its Final Determination Notice revoking Petitioner’s 421-a Tax Exemption Program benefits, and mailed the notice on the same day to the required addresses set forth in Section 39-05 of Chapter 39 of Title 28 of the Rules of the City of New York (“RCNY”). Pursuant to Title 28 RCNY § 39-05, “such notice shall be deemed to have been given upon the third day after such notice has been deposited in the United States mail.” Therefore, Petitioner was required to bring an Article 78, at the latest, within four months of July -1- 2 of 19 FILED: NEW YORK COUNTY CLERK 06/30/2023 04:39 PM INDEX NO. 153346/2023 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 06/30/2023 30, 2022. As Petitioner did not commence the instant proceeding until April 12, 2023, its challenge is time-barred. See Civil Practice Law and Rules (“CPLR”) § 217(1). Thus, the Court should grant Respondents’ cross-motion to dismiss the instant Petition (i) pursuant to Rule 3211(a)(5) and Section 217(1) of the CPLR, dismissing the Petition as time-barred by the applicable four-month statute of limitations; (ii) and for such other and further relief as this Court may deem just, proper and equitable. STATUTORY FRAMEWORK The 421-a Program In 1971, the New York State Legislature enacted Section 421-a of the Real Property Tax Law (“RPTL”) to spur housing development in New York City at a time when housing market conditions were dire. To incentivize development of permanent housing, a program under RPTL § 421-a(1-15) 1, New York City Administrative Code (“Administrative Code”) §§ 11-245–11- 245.1-b 2, and Chapter 6 of Title 28 of the Rules of the City of New York (“RCNY”), provides tax exemptions for new housing development and certain eligible conversions throughout New York City (hereinafter the “421-a Tax Exemption Program”). The 421-a Tax Exemption Program provides a partial exemption from local real property taxes for newly-constructed multiple dwellings and certain eligible conversions meeting the statutory and regulatory qualifications. During the period of exemption, the owner continues to pay real property taxes based on the assessed value of the land and any improvements thereon in effect during the tax year The State legislature enacted two laws that amended RPTL § 421-a: Chapter 20 of the Laws of 2015, which 1 took effect June 15, 2015, and Chapter 59 of the Law of 2017, which took effect April 10, 2017. The amended version of the statutory framework, to the extent these amendments affect the issuance of 421-a Tax Exemption Program benefits to projects that commenced construction on or before December 31, 2015, is referenced herein. 2 Administrative Code § 11-245.1-b was effective from December 28, 2007 to December 28, 2010. -2- 3 of 19 FILED: NEW YORK COUNTY CLERK 06/30/2023 04:39 PM INDEX NO. 153346/2023 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 06/30/2023 prior to the commencement of construction of the new multiple dwelling. See RPTL §§ 421- a(2)(a) & 421-a(2)(b). Administrative Code Section 11-245 et seq., sets forth the City’s restrictions, limitations, and conditions on the eligibility for, and scope or amount of tax exemption benefits pursuant to the 421-a Tax Exemption Program. HPD’s Authority to Decide Eligibility for Tax Exemption Benefits and to Promulgate Rules Pursuant to RPTL § 421-a(3)(a) and City Charter § 1802(6)(b), HPD is the “local housing agency” charged with administering the 421-a Tax Exemption Program in New York City. Specifically, RPTL § 421-a(3)(a) provides that, in the City of New York, “the term ‘housing agency’ shall mean only [the] department of housing preservation and development.” HPD determines eligibility under the 421-a Tax Exemption Program and promulgates rules to carry out this function. See City Charter § 1802(6)(b); RPTL § 421-a(3); Administrative Code § 11-245(e). HPD’s rules regarding tax exemptions pursuant to RPTL § 421-a(1-15) and Administrative Code § 11-245 et seq. are set forth in Title 28, Chapter 6 of the RCNY. The Department of Finance (“DOF”), the City’s tax assessor, 3 may not process an application for the 421-a Tax Exemption Program unless such application is accompanied by a certificate reflecting that HPD has found the applicant eligible, known as a Final Certificate of Eligibility (“FCE”). See RPTL § 421-a(3)(a). Application for, and Issuance of, a Final Certificate of Eligibility If a building is being operated as a rental building, HPD cannot issue an FCE until it determines the initial adjusted monthly rents for the rental dwelling units of a multiple dwelling. Title 28 RCNY § 6-04(a) provides, in pertinent part, as follows: 3 See City Charter § 1504. -3- 4 of 19 FILED: NEW YORK COUNTY CLERK 06/30/2023 04:39 PM INDEX NO. 153346/2023 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 06/30/2023 No certification of eligibility shall be issued by the Department until the Department determines the initial adjusted monthly rent to be paid by tenants residing in rental dwelling units contained within the multiple dwelling. For rental buildings, the applicant must submit evidence satisfactory to HPD that the owner has registered any rental dwelling units within the multiple dwelling with the New York State Division of Housing and Community Renewal (“DHCR”). Additionally, applicants must provide proof that the multiple dwelling has been registered in accordance with Article 2 of Subchapter 4 of the Housing Maintenance Code, codified at Administrative Code §§ 27-2097 through 27-2109.2. See 28 RCNY 6-05(d)(1)(vii). Accordingly, the owner of a multiple dwelling must “file a new registration statement annually.” Admin. Code § 27-2097(c). Upon its receipt of the application for a FCE and either a Temporary Certificate of Occupancy for all residential areas in the multiple dwelling or a Permanent Certificate of Occupancy, HPD shall make a determination as to whether a multiple dwelling is entitled to benefits under the 421-a Tax Exemption Program for the post-construction period. Upon its determination that a multiple dwelling is entitled to such benefits for the post-construction period, the Department shall issue an FCE. See 28 RCNY § 6-05(e)(2). Eligibility Requirements Pertaining to Rent Regulatory Requirements RPTL § 421-a(2)(f) explicitly states that dwelling units being operated as rentals in properties receiving a 421-a Tax Exemption Program benefit must be properly rent stabilized for the entire time during which they are receiving such benefits, as follows: Notwithstanding the provisions of any local law for the stabilization of rents in multiple dwellings or the emergency tenant protection act of nineteen seventy- four, the rents of a unit shall be fully subject to control under such local law or such act, unless exempt under such local law or such act from control by reason of the cooperative or condominium status -4- 5 of 19 FILED: NEW YORK COUNTY CLERK 06/30/2023 04:39 PM INDEX NO. 153346/2023 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 06/30/2023 of the unit, for the entire period during which the property is receiving tax benefits pursuant to this section for the period any such applicable law or act is in effect, whichever is shorter. (Emphasis added). Additionally, Title 28 RCNY § 6-02(g)(2) provides that to be eligible for 421-a Tax Exemption Program benefits, multiple dwellings must meet rent regulatory requirements during the entire period for which they are receiving tax benefits pursuant to the 421-a program. That section provides, in pertinent part, as follows: (g) Rent regulatory requirements. To be eligible for partial tax exemption the land upon which the eligible project is located must meet the following letting, rental and occupancy requirements: *** (2) Notwithstanding the provisions of any local law for the stabilization of rents in multiple dwellings or the Emergency Tenant Protection Act of 1974, the rents of a unit shall be fully subject to regulation under such local law or such Act, unless exempt under such local law or such act from regulation by reason of the cooperative or condominium status of the unit, for the entire period during which the property is receiving tax benefits pursuant to the Act, or for the period any such applicable local law or such Act is in effect, whichever is shorter . . . . The terms “multiple dwelling” and “building” are defined together under Title 28 RCNY § 6-01(c) as “a dwelling which is, or is to be, lawfully occupied as the residence or home of three or more families living independently of one another, whether individual dwelling units herein are rented or owned as a cooperative or condominium.” -5- 6 of 19 FILED: NEW YORK COUNTY CLERK 06/30/2023 04:39 PM INDEX NO. 153346/2023 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 06/30/2023 HPD’s Authority to Revoke Tax Benefits Pursuant to Title 28 RCNY § 39-02(a), HPD may revoke a tax benefit for cause at any time. The terms “revocation” and “revoke” are defined under Title 28 RCNY § 39-01 as follows: “Revocation” or “Revoke” shall mean any partial or total suspension, reduction, termination or revocation of any Tax Benefit which takes effect as of a date which precedes the Expiration Date of such Tax Benefit, except where State law specifically authorizes the termination of one Tax Benefit upon the commencement of another Tax Benefit. The term “cause” is defined under Title 28 RCNY § 39-01 as “any Violation, Misrepresentation, Omission, Failure, or Discrimination, without regard to the date upon which HPD discovers such Violation, Misrepresentation, Omission, Failure, or Discrimination.” Title 28 RCNY § 39-02(b) outlines the procedure by which HPD may revoke a tax benefit for cause and provides that HPD “shall deliver an Initial Notice to the Taxpayer by the method provided herein for delivery of notices.” Pursuant to Title 28 RCNY § 39-05, HPD is required to deliver all Initial Notices and Determination Notices to the taxpayer by mail to five specified addresses: HPD shall deliver all Initial Notices, Pre-Hearing Notices, Hearing Notices, and Determination Notices to the Taxpayer by mail to (i) the address to which DOF delivers real property tax bills for the Noticed Property, (ii) the last address indicated in documents recorded in the office of the City Register for any Taxpayer holding fee title to the Noticed Property, (iii) the last address indicated in documents recorded in the office of the City Register for any Taxpayer holding a mortgage on the Noticed Property, (iv) the address of any owner registered for the Noticed Property in accordance with Article 2 of subchapter 4 of Chapter 2 of Title 27 of the Administrative Code, and (v) the address of any agent registered for the Noticed Property in -6- 7 of 19 FILED: NEW YORK COUNTY CLERK 06/30/2023 04:39 PM INDEX NO. 153346/2023 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 06/30/2023 accordance with Article 2 of subchapter 4 of Chapter 2 of Title 27 of the Administrative Code. Any such notice shall be deemed to have been given upon the third day after such notice has been deposited in the United States mail. (emphasis added). The term “initial notice” is defined under Title 28 RCNY § 39-01 as follows: “Initial Notice” shall mean a written notice from HPD to the Taxpayer stating the intention to Revoke a Tax Benefit for Cause and the proposed Revocation Date, identifying the Property and Tax Benefit affected, briefly describing the alleged Cause for Revocation of such Tax Benefit, stating the Comment Period, and providing an address for the submission of Comments during the Comment Period. The term “Determination Notice” is defined under Title 28 RCNY § 39-01 as follows: "Determination Notice" shall mean a written notice from HPD to the Taxpayer delivered after the Hearing or, if there is no Hearing, after the Comment Period stating the determination of the Assistant Commissioner regarding whether a Tax Benefit will be Revoked or will remain in effect. Any Determination Notice stating that a Tax Benefit will be Revoked shall specify the Revocation Date. The term “taxpayer” is defined under Title 28 RCNY § 39-01 as follows: “Taxpayer” shall mean (i) the individual or entity located at the address to which DOF sends tax bills for the applicable Property, (ii) any current holder of fee title to such Property whose interest is clearly recorded in the office of the City Register in the applicable borough, and (iii) any current mortgagee of such Property whose mortgage interest in such Property is clearly recorded in the office of the City Register in the applicable borough. -7- 8 of 19 FILED: NEW YORK COUNTY CLERK 06/30/2023 04:39 PM INDEX NO. 153346/2023 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 06/30/2023 During the Comment Period, the taxpayer may submit comments to HPD Then, HPD may meet with such taxpayer if such comments contain either (i) credible evidence that a Factual Issue exists, or (ii) a proposed cure for the alleged Cause for Revocation which HPD determines may be reasonably practicable. See 28 RCNY § 39-02(c). The term “factual issues” is defined in Title 28 RCNY § 39-01 as “one or more issues of fact which, if resolved in favor of the Taxpayer, would require the conclusion that Cause for Revocation does not exist.” However, if HPD does not receive any material comments from the taxpayer during the comment period, HPD shall deliver a determination notice to the taxpayer stating that the tax benefit has been revoked. Title 28 RCNY § 39-02(f) provides as follows: If HPD does not enter into a Cure Agreement with the Taxpayer and either receives no Comments during the Comment Period or determines after reviewing such Comments that there is no Factual Issue concerning the Cause for Revocation, HPD shall deliver a Determination Notice to the Taxpayer by the method provided herein for delivery of notices stating that the Tax Benefit has been Revoked as of the Revocation Date set forth therein. STATEMENT OF FACTS The Subject Premises and the Application for the 421-a Tax Exemption Program According to records filed with the City Register of the City of New York, Petitioner is the owner of the property located at 101-01 39th Avenue, Queens, NY 11368 (Block 1767, Lot 59) (“subject premises”). On or about September 15, 2011, Petitioner submitted to HPD an Application for a Preliminary Certificate of Eligibility (“PCE”) for 421-a(1-15) benefits for the subject premises (“PCE Application”). See Exhibit “A.” 4 On September 27, 2011, HPD approved All references to exhibits in this memorandum of law refer to the exhibits annexed to the Kendrick 4 Affirmation. -8- 9 of 19 FILED: NEW YORK COUNTY CLERK 06/30/2023 04:39 PM INDEX NO. 153346/2023 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 06/30/2023 the application and issued a PCE for the subject premises. See Exhibit “B.” On or about July 8, 2014, Petitioner filed an application for an FCE (“FCE Application”). See Exhibit “C.” On or about May 30, 2017, HPD issued an FCE for the subject premises. See Exhibit “D.” April 14, 2022 Initial Notice On or about April 14, 2022, HPD sent an Initial Notice, as defined by 28 RCNY § 39-01, titled “NOTICE OF IMPENDING REVOCATION,” (“NOIR”) to the required addresses set forth in 28 RCNY § 39-05, as follows: 101-01 One Group, LLC, 101-01 39th Avenue, Corona, NY 11368 (“the last address indicated in documents recorded in the office of the City Register for any Taxpayer holding fee title to the Noticed Property,” and “the address of any owner registered for the Noticed Property in accordance with Article 2 of Subchapter 4 of Chapter 2 of Title 27 of the Administrative Code,” and “the address of any agent registered for the Noticed Property in accordance with Article 2 of Subchapter 4 of Chapter 2 of Title 27 of the Administrative Code”); New York Community Bank, 102 Duffy Avenue 3td Floor, Hichsville, NY 11801 (the last address indicated in documents recorded in the office of the City Register for any Taxpayer holding a mortgage on the Noticed Property”); and 101-01 One Group, LLC, 4056 Junction Blvd., Corona, NY 11368-5837 (“the address to which DOF delivers real property tax bills for the Noticed Property” and “the address of any owner registered for the Noticed Property in accordance with Article 2 of Subchapter 4 of Chapter 2 of Title 27 of the Administrative Code,” and “the address of any agent registered for the Noticed Property in accordance with Article 2 of Subchapter 4 of Chapter 2 of Title 27 of the Administrative Code”). See Exhibit “E.” HPD determined the required mailing addresses pursuant to 28 RCNY § 39-05 by reviewing specific documentation, including the deed for the subject premises recorded with the City Register; a Property Tax Bill Quarterly Statement dated February 19, 2022; the mortgage -9- 10 of 19 FILED: NEW YORK COUNTY CLERK 06/30/2023 04:39 PM INDEX NO. 153346/2023 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 06/30/2023 recorded for the subject premises with the City Register; and a Multiple Dwelling Registration (“MDR”) dated August 9, 2019. See Exhibit “F.” 5 The Initial Notice stated, in pertinent part: A review of rent registration records indicates that you have failed to file 2017-2021 annual building and apartment registrations for the Property listed above. This is a violation of 421-a tax benefit requirements. As a recipient of the partial tax exemption pursuant to Section 421-a(1)-(15) of the Real Property Tax Law (“Tax Benefit”), the Property and its dwelling units are subject to rent stabilization and must be annually registered with New York State Division of Housing and Community Renewal (“DHCR”) for every year since the building completed construction through and including the current registration cycle. This includes housing accommodations that operate as rentals as well as owner-occupied units. Failing to register with DHCR violates New York Real Property Tax Law Section 421-a(2)(f) and Section 6-02(g) of Title 28 of the Rules of the City of New York. HPD now seeks to retroactively revoke the 421-a Tax Benefit from the date upon which the Property initially began receiving such Tax Benefit for failing to file the 2018-2021 annual registrations for the building and its dwelling units (“Cause”). TO CURE YOUR VIOLATION AND AVOID REVOCATION OF YOUR 421-a TAX BENEFIT, YOU MUST COMPLETE ALL OF THE FOLLOWING BY JULY 13, 2022: 5 While Admin. Code § 27-2097(c) requires the owner of the subject property to file an MDR annually, the most recent MDR filed prior to the NOIR and the Final Determination Notice is dated August 9, 2019, and was received by HPD on August 28, 2019. See Exhibit “F.” After the NOIR and Final Determination Notice were mailed, Petitioner filed another MDR, dated August 2, 2022, which was received by HPD on August 28, 2022. See Exhibit “G.” - 10 - 11 of 19 FILED: NEW YORK COUNTY CLERK 06/30/2023 04:39 PM INDEX NO. 153346/2023 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 06/30/2023 1) Complete the 2017-2021 Annual Registration: … 2) After completing the registration process, please contact HPD at 421aRentRegistration@hpd.nyc.gov or 212-863- 7676. If HPD confirms that you have correctly completed the registration process in a timely manner, your Tax Benefit will not be revoked. ALTERNATIVELY, YOU MAY SUBMIT WRITTEN COMMENTS AND/OR INFORMATION TO HPD REGARDING THE POTENTIAL CAUSE FOR REVOCATION ON OR BEFORE JUNE 13, 2022. … If HPD (i) does not receive written comments and/or information, … then HPD will deliver a Determination Notice affirming that the Tax Benefit has been revoked retroactively to the date upon which the Property initially began to receive such Tax Benefit, including, if applicable, revocation of any Tax Benefit received for the period of construction of the Property. Such revocation shall require the repayment of all taxes that would have been owed to the City absent the Tax Benefit. Furthermore, such revocation does not exempt any unit in the Property from the continuing obligation to comply with the requirements of the Tax Benefit, including rent stabilization. HPD received no communication from Petitioner in response to the Notice of Impending Revocation. HPD’s Issuance of its Final Determination After receiving no response to the Notice of Impending Revocation, HPD, by Determination Notice dated July 27, 2022, informed Petitioner that the tax exemption pursuant to - 11 - 12 of 19 FILED: NEW YORK COUNTY CLERK 06/30/2023 04:39 PM INDEX NO. 153346/2023 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 06/30/2023 Section 421-a of the Real Property Tax Law for the subject premises was being revoked. HPD mailed the Determination Notice to Petitioner at the required addresses set forth in 28 RCNY § 39-05. See Exhibit “H.” The Determination Notice provides, in relevant part, as follows: On April 14, 2022, pursuant to 28 R.C.N.Y. Chapter 39, HPD mailed you a Notice of Impending Revocation indicating that HPD intended to retroactively revoke the Tax Benefit for failure to file the 2018-2021 annual registrations for the Property and its dwelling units (“Cause for Revocation”). In accordance with 28 R.C.N.Y. § 39-02(c), the Notice of Impending Revocation provided you until July 13, 2022 (“Documentation Deadline”) to cure the Cause for Revocation, or to submit written comments to HPD concerning the Cause for Revocation. HPD did not receive written comments and the Cause for Revocation was not cured by the Documentation Deadline. Therefore, in accordance with 28 R.C.N.Y. § 39-02(f), HPD has determined that the Tax Benefit will be revoked and has instructed the Department of Finance to retroactively revoke the Tax Benefit as of January 1, 2018. Such revocation shall require the repayment of all taxes from January 1, 2018 that would have been owed to the City absent the Tax Benefit. The foregoing constitutes HPD’s final agency determination. Review of this determination is available pursuant to Article 78 of the New York Civil Practice Law and Rules. Exhibit “H.” Thereafter, Petitioner commenced by Notice of Petition, dated April 12, 2023, and Verified Petition, dated same, this Article 78 proceeding challenging HPD’s July 27, 2022 Determination Notice. ARGUMENT PETITIONER’S CHALLENGE TO HPD’S DETERMINATION TO REVOKE THE 421-A BENEFITS FOR THE SUBJECT PREMISES IS - 12 - 13 of 19 FILED: NEW YORK COUNTY CLERK 06/30/2023 04:39 PM INDEX NO. 153346/2023 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 06/30/2023 TIME-BARRED BY THE APPLICABLE STATUTE OF LIMITATIONS. Petitioner’s challenge to HPD’s determination to revoke the 421-a Tax Exemption Program benefits for the subject premises is time-barred by the applicable four-month statute of limitations for challenging an administrative determination set forth in CPLR § 217(1). Therefore, this proceeding should be dismissed. CPLR § 217(1) prescribes the applicable statute of limitations period for CPLR Article 78 proceedings, which are brought for the purpose of challenging an agency’s final determination. It requires a petitioner to commence a proceeding against an administrative body or officer “within four months after the determination to be reviewed becomes final and binding.” CPLR § 217(1); see also Solnick v. Whalen, 49 N.Y.2d 224, 232 (1980) (“The reason for the short statute is the strong policy, vital to the conduct of certain kinds of governmental affairs, that the operation of government not be trammeled by stale litigation and stale determinations.”) (internal citation omitted). This four-month statutory period commences immediately after the aggrieved party is notified. See Carter v. New York, 95 N.Y.2d 267, 272 (2000) (dismissing an Article 78 petition as time-barred after holding that “the four-month limitations period began to run when notice of the appeals unit decision was mailed to petitioner”); Edmead v. McGuire, 67 N.Y.2d 714, 716 (1986); Biondo v. N.Y. State Bd. Parole, 60 N.Y.2d 832, 834 (1983). Accordingly, a court must strictly apply the applicable statute of limitations and dismiss an Article 78 proceeding as untimely if it is not commenced within the limitations period. See Best Payphones, Inc. v. Dep’t of Info. Tech. & Telecomms., 5 N.Y.3d 30, 34 (2005); Marino v. Proch, 258 A.D.2d 628, 628 (2d Dep’t 1999) (dismissing an action as time-barred where the plaintiff commenced the action by filing one day beyond the expiration of the statute of limitations period). - 13 - 14 of 19 FILED: NEW YORK COUNTY CLERK 06/30/2023 04:39 PM INDEX NO. 153346/2023 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 06/30/2023 Petitioner is challenging HPD’s determination to revoke its 421-a Tax Exemption Program benefits. On July 27, 2022, HPD issued a Final Determination Notice which informed Petitioner that the tax exemption pursuant to Section 421-a of the Real Property Tax Law for the subject premises was being revoked. See Exhibit “H.” HPD mailed this determination to the required addresses set forth in 28 RCNY § 39-05 on July 27, 2022, as shown by its affidavit of mailing. See id. Pursuant to 28 RCNY § 39-05, the Notice was “deemed to have been given” on July 30, 2022, “the third day after such notice has been deposited in the United States mail.” 28 RCNY § 39-05. Consequently, the four-month statute of limitations ran out on November 30, 2022. Petitioner only commenced this proceeding on April 12, 2023, months after the statute of limitations period had ended. Petitioner alleges that it did not receive the July 27, 2022 Final Determination, Petition ¶ 26. However, that claim is contradicted by the administrative record, which shows that HPD mailed the determination to the required addresses set forth in 28 RCNY § 39-05. See id. In this case, HPD sent the Final Determination Notice to three distinct addresses, as two of the addresses encompassed more than one category listed in 28 RCNY § 39-05, as discussed in-detail below. See Exhibit “H.” Petitioner states that, “in order to establish that notice had been provided as required under the RCNY, HPD would have to provide copies of all five (5) of the notices purportedly sent to all five (5) of the addresses identified under Title 28 RCNY § 39-05.” Petition ¶ 50. That is exactly what HPD has provided, as detailed below. The first of the five addresses set forth in 28 RCNY § 39-05 is “the address to which DOF delivers real property tax bills for the Noticed Property.” 28 RCNY § 39-05(i). Petitioner concedes that 4056 Junction Blvd., Corona, NY 11368-5837 is the mailing address listed on Property Tax Bill quarterly statements sent by DOF for the subject premises. Petition ¶ 25; - 14 - 15 of 19 FILED: NEW YORK COUNTY CLERK 06/30/2023 04:39 PM INDEX NO. 153346/2023 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 06/30/2023 Petitioner’s Exhibit “B”; see also Exhibit “F” at 1–2. Contrary to Petitioner’s assertion otherwise, the affidavit of service for the Final Determination shows that the Final Determination was sent to that address. See Petition ¶ 26; Exhibit “H.” The second address set forth 28 RCNY § 39-05 is “the last address indicated in documents recorded in the office of the City Register for any Taxpayer holding fee title to the Noticed Property.” 28 RCNY § 39-05(ii). Petitioner concedes that the “Grantee/Buyer” Address listed in the most recent deed recorded with the City Register is 101-01 39th Avenue, Corona, NY 11366. Petition ¶ 25; Petitioner’s Exhibit “C”; see also Exhibit “F” at 3. HPD’s affidavit of service for the Final Determination shows that HPD mailed a copy of the notice to that address. Exhibit “H.” Petitioner also concedes that 101-01 39th Avenue, Corona, NY 11366, is “the address of any owner registered for the Noticed Property in accordance with Article 2 of Subchapter 4 of Chapter 2 of Title 27 of the Administrative Code,” and thus, also constitutes the fourth address to which HPD must mail notices. 28 RCNY § 39-05(iv); Petition ¶ 25; Exhibit “F” at 29. The third address set forth 28 RCNY § 39-05 is “the last address indicated in documents recorded in the office of the City Register for any Taxpayer holding a mortgage on the Noticed Property.” 28 RCNY § 39-05(iii). HPD’s rules define the Taxpayer for this address as “any current mortgagee of such Property whose mortgage interest in such Property is clearly recorded in the office of the City Register in the applicable borough.” 28 RCNY § 39-01. Pursuant to 28 RCNY § 39-05(iii), HPD mailed a copy of the Final Determination to mortgage holder New York Community Bank, 102 Duffy Avenue 3rd Floor, Hicksville, NY 11801. See Exhibit “F” at 12 (mortgage document recorded with the City Register for the subject premises); Exhibit “H.” Petitioner misinterprets 28 RCNY § 39-05(iii) to require HPD to mail a copy of the Final Determination to the mortgagor of the property at 4056 Junction Blvd., Corona, NY 11368-5837, - 15 - 16 of 19 FILED: NEW YORK COUNTY CLERK 06/30/2023 04:39 PM INDEX NO. 153346/2023 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 06/30/2023 rather than the mortgagee. Petition ¶ 25. While this is incorrect, HPD did in fact mail a Final Determination Notice to 4056 Junction Blvd., Corona, NY 11368-5837, as it constitutes “the address to which DOF delivers real property tax bills for the Noticed Property,” as discussed above. 28 RCNY § 39-05(i); Exhibit “H.” Finally, HPD’s rules also require mailings to the owner and managing agent addresses registered in HPD’s Multiple Dwelling Registration (“MDR”) for the noticed property. See 28 RCNY § 39-05(iv), (v) (“the address of any owner registered for the Noticed Property in accordance with Article 2 of Subchapter 4 of Chapter 2 of Title 27 of the Administrative Code,…the address of any agent registered for the Noticed Property in accordance with Article 2 of Subchapter 4 of Chapter 2 of Title 27 of the Administrative Code.”). Here, Petitioner concedes that 101-01 39th Avenue, Corona, NY 11366, is the owner address listed on the most recent MDR filed before the Final Determination. Exhibit “F” at 29; Petition ¶ 25. HPD’s affidavit of service establishes that the Final Determination was mailed to that address. Exhibit “H.” The same MDR 6 also listed two addresses for the managing agent: 4056 Junction Blvd., Corona, NY 11368-5837 and 101-01 39th Avenue, Corona, NY 11366, both of which received mailed copies of the Final Determination. See Exhibit “F” at 29; Exhibit “H.” While Petitioner argues that a copy of the Final Determination should also have been mailed to “Rising Real Estate Group LLC” as a managing agent for the property, Petition ¶ 25, this entity was only registered as the managing agent in the MDR dated August 2, 2022, which was received by HPD on August 26, 2022, approximately a month after HPD mailed the Final Determination on July 27, 2022. See Exhibit “G”; see also Petitioner’s Exhibit “E.” While Admin. Code § 27-2097(c) requires the owner of the subject property to file an MDR annually, the 6 most recent MDR filed prior to the Final Determination is dated August 9, 2019, and was received by HPD on August 28, 2019. See Exhibit “F” at 29, 31. - 16 - 17 of 19 FILED: NEW YORK COUNTY CLERK 06/30/2023 04:39 PM INDEX NO. 153346/2023 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 06/30/2023 Petitioner’s self-interested assertions that it did not receive the notices, without more, are not enough to rebut the presumption that the notices were properly mailed to Petitioner. “[A] properly executed affidavit of service raises a presumption that a proper mailing occurred, and a mere denial of receipt is not enough to rebut this presumption.” Matter of Ariel Servs., Inc. v. N.Y.C. Envtl. Control Bd., 89 A.D.3d 415, 415 (1st Dep’t 2011) (quoting Kihl v. Pfeffer, 94 N.Y.2d 118, 122 (1999)). Thus, Petitioner’s assertion that it did not receive the mailed Final Determination is without merit. Therefore, as Petitioner commenced this proceeding more than four months after the statute of limitations ran, Petitioner’s challenge to HPD’s determination to revoke its 421-a Tax Exemption Benefits is time-barred Petitioner’s challenge must be dismissed pursuant to CPLR § 7804(f). CONCLUSION For all the above reasons, Respondents respectful