author: G.B. Smith, J.

text:
    [835 NE2d 643, 801 NYS2d 783]
    In the Matter of KSLM-Columbus Apartments, Inc., Respondent, v New York State Division of Housing and Community Renewal, Appellant, and Westgate Tenants Association et al., Intervenors-Appellants.
    Argued May 4, 2005;
    decided June 14, 2005

      POINTS OF COUNSEL

      Eliot Spitzer, Attorney General, New York City (Oren L. Zeve, Caitlin J. Halligan and Michael S. Belohlavek of counsel), for appellant.
    I. The Division of Housing and Community Renewal correctly concluded that KSLM-Columbus Apartments, Inc.’s 1968 buildings were regulated under the Rent Stabilization Law of 1969 when their Private Housing Finance Law/Mitchell-Lama status terminated. (Federal Home Loan Mtge. Corp. v New York State Div. of Hous. & Community Renewal, 87 NY2d 325; Matter of Lord Mgt. Corp. v Weaver, 11 NY2d 180; Matter of Oteri v Temporary State Hous. Rent Commn., 9 AD2d 529, 8 NY2d 810; La Guardia v Cavanaugh, 53 NY2d 67; Matter of Gilman v New York State Div. of Hous. & Community Renewal, 99 NY2d 144; Matter of Royal Realty Co. v New York State Div. of Hous. & Community Renewal, 161 AD2d 404; Department of Welfare of City of N.Y. v Siebel, 6 NY2d 536; Matter of Nelson v Roberts, 304 AD2d 20; Matter of 427 W. 51st St. Owners Corp. v Division of Hous. & Community Renewal, 3 NY3d 337; Matter of Gaines v New York State Div. of Hous. & Community Renewal, 90 NY2d 545.) II. The Rent Stabilization Law of 1969 applies because neither the Emergency Tenant Protection Act nor Matter of Zeitlin v New York City Conciliation & Appeals Bd. (56 AD2d 805 [1977]) directs the application of the Emergency Tenant Protection Act once KSLM-Columbus Apartments, Inc.’s Private Housing Finance Law status terminated. (La Guardia v Cavanaugh, 53 NY2d 67; Carney v Philippone, 1 NY3d 333; Matter of Long v Adirondack Park Agency, 76 NY2d 416; Federal Home Loan Mtge. Corp. v New York State Div. of Hous. & Community Renewal, 87 NY2d 325; Matter of Oteri v Temporary State Hous. Rent Commn., 9 AD2d 529; Matter of Lord Mgt. Corp. v Weaver, 11 NY2d 180; Arbegast v Board of Educ. of S. New Berlin Cent. School, 65 NY2d 161.) III. KSLM-Columbus Apartments, Inc.’s other arguments do not demonstrate that the Division of Housing and Community Renewal erred in applying the Rent Stabilization Law of 1969 to its buildings. (DeMuria v Hawkes, 328 F3d 704; Riley v County of Broome, 95 NY2d 455.)

      Himmelstein, McConnell, Gribben, Donoghue & Joseph, New York City (Serge Joseph, Kevin R. McConnell and William J. Gribben of counsel), for intervenors-appellants.
    I. The Appellate Division’s decision departs from well-settled precedents. (Matter of Lord Mgt. Corp. v Weaver, 11 NY2d 180; Matter of Bayview Hotel v Temporary State Hous. Rent Commn., 12 NY2d 423; Federal Home Loan Mtge. Corp. v New York State Div. of Hous. & Community Renewal, 87 NY2d 325; Minton v Domb, 63 AD2d 36; Matter of Cornerstone Baptist Church v Rent Stabilization Assn., 55 AD2d 952; Towers Hotel Invs. Corp. v Davis, 54 AD2d 730; Wilson v One Ten Duane St. Realty Co., 123 AD2d 198; Matter of Vindigni v Altman, 40 AD2d 707; La Guardia v Cavanaugh, 53 NY2d 67; Museum of Modern Art v Kirk, 111 Misc 2d 1074.) II. Section 3 of the Emergency Tenant Protection Act and the City Council resolution do not require a different result. (Matter of 89 Christopher v Joy, 35 NY2d 213; Matter of Zeitlin v New York City Conciliation & Appeals Bd., 46 NY2d 992; Matter of Cornerstone Baptist Church v Rent Stabilization Assn., 55 AD2d 952; La Guardia v Cavanaugh, 53 NY2d 67.) III. Matter of Zeitlin v New York City Conciliation & Appeals Bd. (56 AD2d 805 [1977]) is distinguishable. IV The Appellate Division should not have reached the issue of whether the owner is entitled to use Administrative Code of the City of New York § 26-513 (a) as a basis to adjust the initial rent since this was never addressed by the Division of Housing and Community Renewal or the Supreme Court. (Skinner v Paramount Pictures, 294 NY 474.) V This Court should remand this matter to the Division of Housing and Community Renewal for a determination of whether there exists “unique” or “peculiar” circumstances. (Matter of Gruber, 89 NY2d 225; Matter of New York State Assn. of Life Underwriters v New York State Banking Dept., 83 NY2d 353; Helmsley-Spear, Inc. v Winter, 74 AD2d 195, 52 NY2d 984; Mat

      ter of Meko Holding v Joy, 107 AD2d 278; Matter of Dworman v New York State Div. of Hous. & Community Renewal, 94 NY2d 359; Vink v New York State Div. of Hous. & Community Renewal, 285 AD2d 203.) VI. Alternatively, this Court should decide that voluntary participation in the Mitchell-Lama program, the willing acceptance of the benefits of the program, voluntary departure from the Mitchell-Lama program and the attendant relinquishment of the benefits do not constitute “unique or peculiar” circumstances under Administrative Code of City of New York § 26-513 (a). (Matter of Steinbeck v Gerosa, 4 NY2d 302; Matter of Manhattan Pizza Hut v New York State Human Rights Appeal Bd., 51 NY2d 506; Matter of Town Bd. of Town of Huntington v Zoning Bd. of Appeals of Town of Huntington, 161 AD2d 647; 207 Realty Assoc. v New York State Div. of Hous. & Community Renewal, 297 AD2d 569; Matter of D.K.M. Realty Corp. v Gabel, 23 AD2d 637; Matter of Bleecker St. Mgt. Co. v New York State Div. of Hous. & Community Renewal, 284 AD2d 174; Pajak v Pajak, 56 NY2d 394; Matter of Versailles Realty Co. v New York State Div. of Hous. & Community Renewed, 76 NY2d 325; Matter of Nicholas v Kahn, 47 NY2d 24; Matter of VR Equities v New York City Conciliation & Appeals Bd., 118 AD2d 459.)

      Rosenberg & Estis, PC., New York City (Gary M. Rosenberg, Jeffrey Turkel and Nicholas Kamillatos of counsel), for respondent.
    I. This Court need not defer to the Division of Housing and Community Renewal’s interpretation of the governing statutes. (Matter of Mounting & Finishing Co. v McGoldrick, 294 NY 104; Matter of Moran Towing & Transp. Co. v New York State Tax Commn., 72 NY2d 166; Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451; Matter of Madison-Oneida Bd. of Coop. Educ. Servs. v Mills, 4 NY3d 51; Matter of Polan v State of N.Y. Ins. Dept., 3 NY3d 54; Matter of Belmonte v Snashall, 2 NY3d 560; Matter of Gruber, 89 NY2d 225; Matter of Dworman v New York State Div. of Hous. & Community Renewal, 94 NY2d 359; Matter of Missionary Sisters of Sacred Heart, Ill. v New York State Div. of Hous. & Community Renewal, 283 AD2d 284; Matter of Eastern Pork Prods. Co. v New York State Div. of Hous. & Community Renewal, 187 AD2d 320.) II. The KSLM-Columbus Apartments, Inc. (KSLM) apartments became subject to stabilization by virtue of the Emergency Tenant Protection Act; as such, KSLM was eligible to file for unique or peculiar rent adjustments under Administrative Code of the City of New York § 26-513 (a). (City of New York v New York State Div. of Hous. & Community Renewal, 97 NY2d 216; La Guardia v Cavanaugh,
      53 NY2d 67; Matter of 1605 Book Ctr. v Tax Appeals Trib. of State of N.Y., 83 NY2d 240; Doctors Council v New York City Employees’ Retirement Sys., 71 NY2d 669; Matter of Excellus Health Plan v Serio, 2 NY3d 166; Matter of Theroux v Reilly, 1 NY3d 232; Matter of Oteri v Temporary State Hous. Rent Commn., 9 AD2d 529, 8 NY2d 810; Federal Home Loan Mtge. Corp. v New York State Div. of Hous. & Community Renewal, 87 NY2d 325; Pajak v Pajak, 56 NY2d 394.) III. The Division of Housing and Community Renewal repeatedly—and correctly— represented to Department of Housing and Urban Development officials that all owners of pre-1974 buildings coming out of Private Housing Finance Law regulation could apply for unique or peculiar rent adjustments under Administrative Code of the City of New York § 26-513 (a). IV Any KSLM-Columbus Apartments, Inc. apartment that became vacant on or after July 1, 1971 necessarily became subject to rent stabilization by virtue of the Emergency Tenant Protection Act. (Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274; Pajak v Pajak, 56 NY2d 394; Matter of Eastern Pork Prods. Co. v New York State Div. of Hous. & Community Renewal, 187 AD2d 320.) V The Division of Housing and Community Renewal’s Commissioner, Deputy Commissioner and the Appellate Division correctly held that emergence from a more stringent regulatory program to rent stabilization qualifies as a “unique or peculiar” circumstance that may entitle an owner to rent adjustments under Administrative Code of the City of New York § 26-513 (a).

      Patterson, Belknap, Webb & Tyler LLP, New York City (Karl E. Seib, Jr. and Laura J. Wood of counsel), Community Service Society of New York (Juan Cartagena and Risa E. Kaufman of counsel) and Legal Services for New York City Legal Support Unit (Raun Rasmussen and David Robinson of counsel) for Community Service Society of New York and others, amici curiae.
    I. The Appellate Division’s decision threatens to exacerbate New York City’s housing crisis by eliminating a critical source of affordable housing. II. The Appellate Division’s decision threatens to place an enormous burden on financially strapped families.

      Emery Celli Brinckerhoff & Abady LLP, New York City (Matthew D. Brinckerhoff and Katherine Rosenfeld of counsel), for New York State Tenants & Neighbors Coalition, Inc. and others, amici curiae.
    I. The “unique or peculiar” ruling must be vacated because it was made improvidently, without legal briefing or a factual record. (Davis v Waterside Hous. Co., 274 AD2d 318; Capers v Giuliani, 253 AD2d 630, 93 NY2d 868; Flacke v Onondaga Landfill Sys., 69 NY2d 355.) II. An owner’s voluntary exit from the Mitchell-Lama program does not constitute “unique or peculiar circumstances” justifying steep rent increases for current tenants. (Matter of D.M.K. Realty Corp. v Gabel, 23 AD2d 637; Matter of Cornerstone Baptist Church v Rent Stabilization Assn., 55 AD2d 952; Perth Realty Co. v Dovoll, 79 Misc 2d 514; La Guardia v Cavanaugh, 53 NY2d 67; Matter of 221 W. 16th Realty v New York State Div. of Hous. & Community Renewal, 277 AD2d 81; 207 Realty Assoc. v New York State Div. of Hous. & Community Renewal, 297 AD2d 569; Matter of Bleecker St. Mgt. Co. v New York State Div. of Hous. & Community Renewal, 284 AD2d 174.) III. The consequences of the decision are devastating.
   OPINION OF THE COURT

G.B. Smith, J.

In this appeal by the Division of Housing and Community Renewal (DHCR), the issue is whether buildings previously constructed and operated pursuant to the Mitchell-Lama program are made subject to the Rent Stabilization Law of 1969 (RSL) by the RSL itself, or by the Emergency Tenant Protection Act of 1974 (ETPA). We conclude that apartments inhabited continuously since before July 1, 1971 were made subject to stabilization by the RSL, and those in which there has been a vacancy on or after July 1, 1971 were made subject to stabilization by the ETPA. In 1967 and 1968, the predecessor of KSLMColumbus Apartments, the Westgate Housing Corporation (Westgate), constructed three buildings located at West 96th and West 97th Streets in Manhattan. Tenants first moved into these buildings in 1968. Westgate was a limited profit housing company which constructed and financed these buildings through article II of the Private Housing Finance Law, commonly referred to as the Mitchell-Lama Law. Enacted in 1955, the Mitchell-Lama legislation offered financial incentives to landlords to develop low- and middle-income housing. Incentives included long-term, low-interest government mortgage loans and real estate tax exemptions. In return for these financial benefits, developers agreed to regulations concerning rent, profit, disposition of property and tenant selection. West-gate dissolved in March 1979 and was restructured into KSLM.

In March 1998, KSLM withdrew the buildings from the Mitchell-Lama program and they immediately became subject to rent stabilization. The immediately preceding rent for each apartment became the “initial regulated rent” under Rent Stabilization Law (RSL) of 1969 (Administrative Code of City of NY) § 26-512 (b) (3) and Rent Stabilization Code (9 NYCRR) § 2521.1 (j). In 1998, the average initial stabilized monthly rents for the KSLM apartments were $267, $333, $407 and $522 for, respectively, studio, one-bedroom, two-bedroom and three-bedroom apartments. As a result of withdrawal from the Mitchell-Lama program, KSLM began paying full real estate taxes and interest at market rates. KSLM also “enter[ed] the legislative quagmire which encompasses the New York City and New York State rent control laws” (Matter of KSLM-Columbus Apts. v New York State Div. of Hous. & Community Renewal, 6 AD3d 28, 30 [1st Dept 2004]).

In May 1998, KSLM made three separate applications to DHCR for “unique or peculiar” rent adjustments under the ETPA pursuant to RSL § 26-513 (a). That section provides:

“The tenant or owner of a housing accommodation made subject to this law by the emergency tenant protection act of nineteen seventy-four may, within sixty days of the local effective date of this section or the commencement of the first tenancy thereafter, whichever is later, file with the commissioner an application for adjustment of the initial legal regulated rent for such housing accommodation. The commissioner may adjust such initial legal regulated rent upon a finding that the presence of unique or peculiar circumstances materially affecting the initial legal regulated rent has resulted in a rent which is substantially different from the rents generally prevailing in the same area for substantially similar housing accommodations.”

KSLM stated in its applications that its rents were “substantially different from the rents generally prevailing in the same area for substantially similar housing accommodations” since its buildings had been governed by the Private Housing Finance Law for over 29 years and were not economically viable without the section 26-513 (a) adjustment of initial rents.

The DHCR Rent Administrator denied KSLM’s applications on February 18, 2000, finding that KSLM was ineligible to apply for relief under section 26-513 (a) because “it became subject to the [RSL] not by virtue of the [ETPA] but by virtue of the [RSL] when the building left the Mitchell-Lama program.” In January 2001, the Deputy Commissioner denied KSLM’s petitions for administrative review and found that KSLM erred in assuming every housing accommodation is made subject to the RSL by the ETPA if it came out of its exempt status after July 1, 1974.

KSLM brought a CPLR article 78 proceeding challenging DH-CR’s determination. On June 12, 2002, Supreme Court denied the petition and dismissed the proceeding. The Appellate Division unanimously reversed. It concluded that the jurisdiction of the ETPA covered “any class or classes of housing accommodations . . . exempted from regulation and control under the provisions of the emergency housing rent control law, the local emergency housing rent control act or the New York city rent stabilization law of nineteen hundred sixty-nine” (6 AD3d at 36, quoting ETPA [L 1974, ch 576, § 4, as amended] § 3 [a]). The Appellate Division reasoned that since the buildings in question were clearly exempted from the Rent Stabilization Law, they were covered by ETPA. This Court granted DHCR and the intervenors leave to appeal and we now modify the Appellate Division’s holding.

Discussion

The New York City Council enacted the RSL in 1969 (Administrative Code § 26-501 et seq.). Rent stabilization is now administered,by DHCR, which has promulgated the Rent Stabilization Code. The 1969 RSL regulated,

“Class A multiple dwellings not owned as a cooperative or as a condominium . . . containing six or more dwelling units which:
“(1) were completed after February first, nineteen hundred forty-seven, except dwelling units . . . (b) subject to rent regulation under the private housing finance law or any other state law” (Administrative Code § 26-504 [a] [1] [b]).

In 1971, the State Legislature determined that new construction had essentially come to a standstill and, in response, enacted three statutes designed to limit local rent regulation, two of which are presently relevant: the Vacancy Decontrol Law (VDL) and the Urstadt Law. The VDL exempted from local rent regulation any housing accommodation that became vacant after June 30, 1971 (L 1971, ch 371). The Urstadt Law barred the adoption of more restrictive regulations on housing accommodations that were already subject to rent regulation (L 1971, ch 372, as amended by L 1971, ch 1012 [McKinney’s Uncons Laws of NY § 8605]).

In 1974, the State Legislature recognized the need for rent regulation due to a shortage brought on by high demand. It enacted the ETPA (L 1974, ch 576, § 4), amended the VDL so vacancies on or after July 1, 1971 would be subject to the ETPA, and amended the RSL so owners of units brought under stabilization by ETPA could seek initial legal regulated rent adjustments based on “unique or peculiar” circumstances (L 1974, ch 576, § 12, adding Administrative Code § YY51-6.0.2 [a] [now § 26-513 (a)]). Section 3 of the ETPA allowed New York City to extend rent stabilization to nonstabilized housing after a determination that an emergency (five percent or less vacancy rate) existed. Section 5 of the ETPA allowed stabilization coverage to “all or any class or classes of housing accommodations” with certain exceptions, including rent-controlled apartments for so long as they maintained that status, and apartments in buildings built on or after January 1, 1974. This effectively allowed New York City to bring apartments in buildings of six or more units within New York City’s rent stabilization system, including apartments that had been decontrolled under the VDL, were in buildings constructed after 1969 but before January 1, 1974, or became vacant after 1975.

On this appeal, DHCR and intervenor Westgate Tenants Association contend that once KSLM’s Mitchell-Lama buildings ceased being subject to the Private Housing Finance Law, they became subject to stabilization by virtue of the RSL of 1969, and that the ETPA does not govern the status of these buildings. If the argument that the 1969 RSL applies prevails, KSLM must apply for an initial legal regulated rent under a hardship standard pursuant to Rent Stabilization Code § 2522.4 (b) and (c), which base “hardship” increases on the relationship between the annual rent and a calculation of either the annual net income or the annual operating expenses of the building, with an increase limit of six percent.

By contrast, KSLM argues that the buildings are not subject to stabilization by virtue of the 1969 RSL but by virtue of the 1974 ETPA and thus are subject to the initial rent adjustment pursuant to RSL § 26-513 (a). If this argument prevails, then, pursuant to section 26-513 (a), KSLM may file an application with DHCR for an adjustment of the initial legal regulated rent. DHCR would then consider the considerable difference between the market rates for apartments located on Manhattan’s Upper West Side and current rates in KSLM’s buildings.

The issue before us is one of statutory construction and not of deference to DHCR’s determination. Where the interpretation of a statute involves specialized “knowledge and understanding of underlying operational practices or entails an evaluation of factual data and inferences to be drawn therefrom,” the courts should defer to the administrative agency’s interpretation unless irrational or unreasonable (Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451, 459 [1980]; see also, Matter of Union Indem. Ins. Co. of N.Y., 92 NY2d 107, 114-115 [1998]; Matter of Rosen v Public Empl. Relations Bd., 72 NY2d 42, 47-48 [1988]). By contrast, where, as here, the question is one of pure statutory interpretation “dependent only on accurate apprehension of legislative intent, there is little basis to rely on any special competence or expertise of the administrative agency and its interpretive regulations are therefore to be accorded much less weight” (Kurcsics v Merchants Mut. Ins. Co., 49 NY2d at 459).

We reject petitioner’s argument that, but for the 1974 ETPA, the 1969 RSL would be inapplicable to all the apartments in its buildings. It is conceded that all the apartments are subject to rent stabilization, but the question is whether they would have been subject to rent stabilization if the ETPA had never been passed. These are pre-1969 buildings, which, if they had not been Mitchell-Lama buildings, would have been regulated under the 1969 law, and would not have needed the ETPA to bring them under stabilization. The 1969 law (Administrative Code § 26-504 [a] [1] [b]) exempts multiple dwellings that are “subject to rent regulation under the private housing finance law.” We agree with DHCR that a building no longer subject to rent regulation under the Private Housing Finance Law loses its exemption under this statute and becomes subject to rent stabilization. Thus, petitioner’s buildings would be subject to rent stabilization under the 1969 law, even if the ETPA had never been enacted.

The 1969 RSL’s exception for Mitchell-Lama buildings provides:

“[The RSL] shall apply to . . .
“Class A multiple dwellings not owned as a cooperative or as a condominium . . . containing six or more dwelling units which:
“(1) were completed after [February 1, 1947], except dwelling units . . . (b) subject to rent regulation under the private housing finance law or any other state law ...” (Administrative Code § 26-504 [a] [1] [b]).

KSLM argues that this language shows the Mitchell-Lama units were never subject to the RSL and could therefore never revert to the RSL. We reject this argument. It is clear that it was the intent of the Legislature that Mitchell-Lama buildings remain in the rent stabilization system after Private Housing Finance Law withdrawal (see Federal Home Loan Mtge. Corp. v New York State Div. of Hous. & Community Renewal, 87 NY2d 325 [1995] [holding that a building once rent stabilized which lost its cooperative status again became subject to the RSL]). ETPA was enacted to recapture or include within the rent stabilization system housing accommodations that were never rent regulated or that had been decontrolled. The KSLM buildings, built before March 10, 1969, were already under the RSL system when ETPA was enacted. Therefore, ETPA’s language did not apply to KSLM buildings apart from the effect of the VDL discussed below.

Rent Stabilization Code § 2520.11 (c), also relied on by the Appellate Division, states: “[H]ousing accommodations in buildings completed or substantially rehabilitated prior to January 1, 1974, and whose rentals were previously regulated under the PHFL . . . shall become subject to the ETPA, the RSL and this Code, upon the termination of such regulation.” While this language might be read as implying that former Mitchell-Lama apartments are “made subject to” rent stabilization by the ETPA, we conclude that it means simply that those apartments are “subject to” whatever provisions of ETPA, the RSL and the Code are applicable by their terms. In evaluating the Code provision, we must bear in mind that it is only a regulation, and can only interpret the statute. In other words, the pre-ETPA version of the RSL was applicable to former Mitchell-Lama buildings built before 1969 and the Code cannot change that.

KSLM argues that the Urstadt Law, passed in 1971, would prevent former Mitchell-Lama apartments from reverting to rent stabilization—i.e., that no such reversion could take place if the ETPA did not exist. The Urstadt Law says that “no local law or ordinance shall hereafter provide for the regulation and control of residential rents and eviction in respect of any housing accommodations which are . . . presently exempt from such regulation and control . . . .” (Emphasis added.) It also says that “[n]o housing accommodations presently subject to regulation and control pursuant to local laws or ordinances . . . shall hereafter be by local law or ordinance . . . subjected to more stringent or restrictive provisions of regulation and control than those presently in effect.” (Emphasis added.) The Urstadt Law was intended to prevent any new tightening of rent regulation after 1971, not to prevent the expiration of an exemption from rent stabilization that was already in existence in 1969.

At the time of the Urstadt Law’s enactment, the RSL was the default rent stabilization regulatory scheme. Halting its application to exempt units whose expirations were certain to occur would read too much into the Urstadt Law in that the Legislature was attempting to end rent stabilization in New York City. This simply was not the case. This Court has explained before that the objective of the Urstadt Law was to limit the fear of “more stringent control [to] encourage owners to invest in the maintenance and improvement of existing housing units and thereby help to stem the tide of abandonment of sound buildings in the City” (City of New York v New York State Div. of Hous. & Community Renewal, 97 NY2d 216, 226 [2001], quoting Mayer v City Rent Agency, 46 NY2d 139, 150 [1978]). Therefore, we reject KSLM’s argument that the enactment of the Urstadt Law prevented the RSL’s application once the Private Housing Finance Law exemption ended.

KSLM argues, in the alternative, that at least as to apartments that became vacant on or after July 1, 1971, the 1969 RSL is inapplicable. The VDL, effective June 30, 1971, provided simply: “housing accommodations which become vacant shall be exempt from regulations and control . . .” (L 1971, ch 371, § 6). But for the ETPA, that would still be the law today, and would apply to former Mitchell-Lama apartments that were vacated after the VDL’s effective date. A 1974 amendment changed the language to read “housing accommodations which became vacant on or after July first, nineteen hundred seventy-one or which hereafter become vacant shall be subject to the provisions of the emergency tenant protection act of nineteen [hundred] seventy-four.” (L 1974, ch 576, § 2.) The apartments described in that section are “made subject to” rent stabilization by the ETPA. Thus, RSL § 26-513 (a) applies to those apartments.

The Appellate Division cites Matter of Zeitlin v New York City Conciliation & Appeals Bd. (46 NY2d 992 [1979]), where we held that an apartment originally exempted from prior city rent control provisions was subject to the ETPA, as being particularly instructive. The present case is distinguishable from Zeitlin where the prior local provision exempted the housing accommodation from rent control and the tenant argued the unit was therefore subject to the ETPA. We agreed with the tenant that ETPA coverage immediately attached. The apartment in Zeitlin, however, was precisely the type of unit the State Legislature wanted included in the rent stabilization system. Since the choice was between no regulation and the ETPA, this Court chose to follow the intent of the State Legislature and the City Council that such an accommodation be regulated. In the present case, the choice is between the RSL, which would have governed the Private Housing Finance Law unit upon withdrawal in the absence of the VDL, and the ETPA, which sought to reverse decontrol legislation and bring more units into the system. The RSL was applicable to KSLM apartments that were inhabited between 1968 and the 1971 enactment of the VDL because it was the purpose of the RSL to regulate such housing.

DHCR concedes that the amended VDL subjects to ETPA coverage all KSLM apartments that became vacant after dissolution in 1998. DHCR maintains, however, that the RSL was suspended between 1971 and 1974 due to the Private Housing Finance Law. Therefore, decontrol did not apply. This argument is inconsistent with DHCR’s other argument that the RSL applied to KSLM’s apartments from the time of its enactment. We agree with the Appellate Division that it is inherently contradictory to argue KSLM apartments are currently “subject to RSL jurisdiction to the exclusion of ETPA jurisdiction, but not subject to the RSL for the purposes of vacancy deregulation” (Matter of KSLM-Columbus Apts. v New York State Div. of Hous. & Community Renewal, supra, 6 AD3d at 39). Therefore, we conclude that the KSLM apartments vacated on or after July 1, 1971 are subject to the ETPA and that as to those apartments pursuant to RSL § 26-513 (a), KSLM may apply to DHCR for “unique or peculiar” rent adjustments.

Accordingly, the order of the Appellate Division should be modified, without costs, in accordance with this opinion and, as so modified, affirmed.

Chief Judge Kaye and Judges Ciparick, Rosenblatt, Graffeo, Read and R.S. Smith concur.

Order modified, etc.

      . Section 26-512 (b) reads:
      “The initial regulated rent for housing accommodations subject to this law on the local effective date of the emergency tenant protection act of nineteen seventy-four or which become subject to this law thereafter, pursuant to such act, shall be . . .
      “(3) For housing accommodations other than those described in paragraphs one and two of this subdivision, the rent reserved in the last effective lease or other rental agreement.”

      . Section 2521.1 (j) reads in part: “For housing accommodations whose rentals were previously regulated under the PHFL, or any other State or Federal law, other than the RSL or the City Rent Law, upon the termination of such regulation, the initial legal regulated rent shall be the rent charged to and paid by the tenant in occupancy on the date such regulation ends.”


source: Caselaw Access Project

license: Public Domain

text:
    [835 NE2d 650, 801 NYS2d 790]
    In the Matter of Jeffrey H. Michaelis, M.D., Appellant, v Dennis J. Graziano, as Director of the Office of Professional Medical Conduct, et al., Respondents.
    Argued June 1, 2005;
    decided June 30, 2005

      POINTS OF COUNSEL

      Rende, Ryan & Downes, LLP, White Plains (Roland T Koke of counsel), for appellant.
    I. The Office of Professional Medical Conduct does not have distinct inspection rights under a comprehensive medical review order, other than ordinary subpoena power. (Matter of Shankman v Axelrod, 73 NY2d 203; Tanner v Dr. A., 228 AD2d 238; Matter of Levin v Murawski, 59 NY2d 35.) II. The comprehensive medical review “procedure” denies appellant due process. (Matter of Caselnova v New York State Dept. of Health, 91 NY2d 441; Matter of Ostad v New York

      State Dept. of Health, 309 AD2d 989; Matter of Daniels v Novello, 306 AD2d 644.) III. Alternatively, the comprehensive medical review order is without factual basis and not demonstrably relevant to the investigation. (Matter of Levin v Murawski, 59 NY2d 35; Matter of Levin v Guest, 112 AD2d 830; Matter of A-85-04-38, 138 Misc 2d 786; Dombroff v State Bd. for Professional Med. Conduct, 131 Misc 2d 472; Matter of BU-90-09-2400, 184 AD2d 1028.) IV The lower court improperly relied upon an in camera affidavit to resolve legal issues in dispute. (Matter of Levin v Murawski, 59 NY2d 35; Matter of Levin v Guest, 112 AD2d 830; Matter of McBarnette v Sobol, 83 NY2d 333.) V Respondents should be compelled to give appellant written notice of the issues identified for investigation as required by statute.

      Eliot Spitzer, Attorney General, New York City (Shaifali Puri, Caitlin Halligan and Daniel Smirlock of counsel), for respondents.
    I. Prohibition is not available to thwart the Office of Professional Medical Conduct’s statutorily-authorized order issued in furtherance of the preliminary investigation into the complaint of misconduct against Jeffrey H. Michaelis, M.D. (Matter of Doe v Axelrod, 71 NY2d 484; Matter of Rush v Mordue, 68 NY2d 348; Matter of Pirro v Angiolillo, 89 NY2d 351; Sega v State of New York, 60 NY2d 183; Matter of Town of Huntington v New York State Div. of Human Rights, 82 NY2d 783; Matter of Schumer v Holtzman, 60 NY2d 46; Matter of McGinley v Hynes, 51 NY2d 116; Matter of Lombardo v De-Buono, 233 AD2d 789.) II. The Legislature expressly authorized the Director of the Office of Professional Medical Conduct to order a comprehensive medical review and did not condition that power on the issuance of a subpoena by the Executive Secretary of the Board for Professional Medical Conduct. (Rangolan v County of Nassau, 96 NY2d 42; Matter of Theroux v Reilly, 1 NY3d 232; Matter of Shankman v Axelrod, 73 NY2d 203; Matter of Levin v Murawski, 59 NY2d 35; Tanner v Dr. A, 228 AD2d 238; Matter of Ostad v New York State Dept. of Health, 309 AD2d 989; Matter of Daniels v Novello, 306 AD2d 644.) III. The procedure for issuing a comprehensive medical review order pursuant to Public Health Law § 230 (10) (a) (iv) comports with due process. (People v David W., 95 NY2d 130; Matter of New York State Commn. on Jud. Conduct v Doe, 61 NY2d 56; Matter of Bell v New York State Dept. of Health, 291 AD2d 744; Matter of Daniels v Novello, 306 AD2d 644; Matter of Ostad v New York State Dept. of Health, 309 AD2d 989; Locurto v Safir, 264 F3d 154.) IV The in camera review of the Office of Professional Medical Conduct’s submissions to support the comprehensive medical review order was proper, and those submissions demonstrate the reasonable basis for the order and the relevance of the documents requested. (Matter of McBarnette v Sobol, 83 NY2d 333; Matter of Levin v Guest, 112 AD2d 830, 67 NY2d 629, 476 US 1171; Tanner v Dr. A., 228 AD2d 238; Atkins v Guest, 201 AD2d 411; Matter of Levin v Murawski, 59 NY2d 35.)
   OPINION OF THE COURT

G.B. Smith, J.

The central issue on appeal is whether the Office of Professional Medical Conduct (OPMC) was required to issue a subpoena in order to undertake a comprehensive medical review (CMR) of a doctor’s records. We conclude that a subpoena was not required.

OPMC, a branch of the Department of Health responsible for investigating and monitoring misconduct, began an investigation of petitioner, Dr. Jeffrey Michaelis, pursuant to Public Health Law § 230 on October 19, 2001, after receiving a complaint regarding petitioner’s care of a patient. On October 31, OPMC notified petitioner that it was investigating his medical practice, and “[t]he issue under investigation is the care and treatment rendered to [the patient].” During the investigation, OPMC conducted an interview of petitioner on November 28, 2001 pursuant to Public Health Law § 230 (10) (a) (iii).

On August 9, 2002, OPMC informed petitioner, in a letter, that evidence existed of a pattern of inappropriate medical practice and that a CMR of petitioner’s patient records would be conducted. The letter notified petitioner that an OPMC staff person would come to his office on a scheduled date to select for copying a number of patient records and such other office records as related to the issues being reviewed. The letter also warned,

“Any failure by you to comply with the order would constitute professional misconduct as defined in N.Y. Education Law § 6530 (15) and will result in a recommendation of prosecution for such misconduct.
In addition, you may be subject to an enforcement proceeding, in New York State Supreme Court, pursuant to Public Health Law 230 (10) (o) (ii).”

Petitioner challenged the CMR order in a CPLR article 78 proceeding. Supreme Court denied petitioner’s claims and a divided Appellate Division affirmed. The two dissenting Justices maintained that, although OPMC had the authority to issue a CMR order, section 230 (10) (a) (iv) did not expressly indicate the process by which records should be made available. They reasoned that section 230 (10) (k), however, did provide for the issuance of subpoenas by the Executive Secretary of the State Board for Professional Medical Conduct upon approval of the committee and this section should govern OPMC’s ability to conduct a CMR. Petitioner appeals as of right pursuant to CPLR 5601 (a). We now affirm.

We first address petitioner’s argument that the OPMC Director lacked authority to compel a CMR. Section 230 of the Public Health Law governs proceedings involving professional medical misconduct. According to Public Health Law § 230 (10) (a) (iv) (A), when the Director of the OPMC determines, after consultation with an investigation committee, that “evidence exists of a single incident of negligence or incompetence, a pattern of inappropriate prescribing or medical practice . . . the director, in addition to the authority set forth in this section, shall be authorized to conduct a [CMR] of patient records . . . and such office records of the licensee . . . related to said determination.” This subparagraph gives OPMC specific statutory authority to conduct a review of petitioner’s records. The power, moreover, is in addition to the authority set forth in the section, including the power of the Executive Secretary to issue subpoenas (Public Health Law § 230 [10] [k]).

The subpoena power authorized in Public Health Law § 230 (10) (k) is thus separate and distinct from the Director’s authority to issue a CMR order under section 230 (10) (a) (iv) (A). It involves the Executive Secretary, not the Director, and does not necessarily relate to a preliminary investigation of a licensee, as a CMR does.

Petitioner’s reliance on Matter of Shankman v Axelrod (73 NY2d 203 [1989]) is misplaced. Shankman involved OPMC’s issuance of an ex parte “inspection” warrant after it had obtained authorization to serve a súbpoena duces tecum pursuant to Public Health Law § 230 (10) (k) but failed to do so. The inspection warrant gave OPMC the right to inspect premises, question patients and remove records. This Court reasoned that, since OPMC had been expressly given the power to issue subpoenas and had not been given such ex parte “inspection” warrant right either by statute or inference, OPMC had no such power. In the present case, however, OPMC has specific statutory authority to issue a CMR order through Public Health Law § 230 (10) (a) (iv). There is no subpoena requirement that should be inferred in this statute. Reading Public Health Law § 230 (10) (a) (iv) in such a manner would inhibit OPMC’s ability to investigate through a CMR, authority the Legislature intended OPMC to have.

Further, the statute provided petitioner with the opportunity for judicial review of OPMC’s CMR order. Public Health Law § 230 (10) (o) provides:

“Where the director has issued an order for a comprehensive medical review of patient records and office records . . . and the licensee has refused to comply with the director’s order, the director may apply to a justice of the supreme court, in writing, on notice to the licensee, for a court order to compel compliance with the director’s order.”

Supreme Court shall not compel compliance unless it finds “(i) there was a reasonable basis for issuance of the director’s order and (ii) there is reasonable cause to believe that the records sought are relevant to the director’s order. The court may deny the application or grant the application in whole or in part.”

Accordingly, when a physician refuses in good faith to comply with a CMR order (as petitioner did in this case), OPMC can seek an order compelling compliance pursuant to Public Health Law § 230 (10) (o). When a physician makes a good faith objection to the CMR, OPMC will not be able to charge a physician with misconduct arising from the failure to comply with the CMR order unless it has first established the propriety of the CMR in a section 230 (10) (o) proceeding (and then only if the physician continues to refuse to comply). Since the physician has an opportunity to be heard at the section 230 (10) (o) proceeding, his or her due process rights are not violated. The good faith exception, coupled with the opportunity for judicial review accorded by Public Health Law § 230 (10) (o), are sufficient to protect the physician’s rights, as the facts of this case indicate. Upon petitioner’s refusal to comply with the CMR order, OPMC cross-moved to enforce the CMR order under section 230 (10) (o). Both courts below held that OPMC established the reasonableness and relevance of the CMR order, a conclusion with which we agree.

Petitioner additionally claims that OPMC was required to divulge the nature of any new issues identified subsequent to the interview before issuing a CMR order. We disagree. Public Health Law § 230 (10) (a) (iii) states, “The licensee shall be given written notice of issues identified subsequent to the interview. The licensee may submit written comments or expert opinion to the office of professional medical conduct at any time.” This language is designed to protect a licensee’s right to respond to substantive allegations. It does not signify that OPMC had an obligation to divulge reasons in order to carry out a CMR. Petitioner was entitled to notice of any “issues identified” before charges relating to those issues were brought, but not before producing documents in connection with a CMR.

Petitioner claims that Supreme Court erroneously relied on an in camera affidavit, denying him an opportunity to respond fully to allegations charged within, and thereby denying him due process. This Court has stated, “If the issuing agency demonstrates the delicacy of a particular investigation or the risk of and consequences attendant on premature disclosure, it may be appropriate to take proof of the threshold foundation in camera” (Matter of Levin v Murawski, 59 NY2d 35, 42 n 4 [1983]). We agree with petitioner that the use of in camera submissions should be limited. Here, while much of the material contained in the in camera affidavit was properly withheld from petitioner, because it involved confidential aspects of the OPMC’s investigation, some of the material—notably OPMC’s description of its communications with petitioner himself— should not have been submitted in camera. It is clear, however, that no information in the latter category was material to the decision here, so any error in allowing material to be submitted without notice was harmless.

Finally, we underscore that OPMC’s letter of August 9, 2002 was inaccurate in stating that a physician’s failure to comply would itself constitute professional misconduct and result in prosecution. Education Law § 6530 (15) defines as misconduct, “Failure to comply with an order issued pursuant to subdivision seven, paragraph (a) of subdivision ten, and subdivision seventeen of section two hundred thirty of the public health law.” This language makes an exception for a timely good faith failure to comply due to a dispute over the availability, scope or necessity of records requested.

Petitioner’s remaining claims are without merit.

Accordingly, the order of the Appellate Division should be affirmed, with costs.

Chief Judge Kaye and Judges Ciparick, Rosenblatt, Graffeo, Read and R.S. Smith concur.

Order affirmed, with costs.

      . Public Health Law § 230 (10) (k) states:
      “The executive secretary of the board with the specific approval of a committee on professional conduct of the board shall have the power to issue subpoenas requiring persons to appear before the board and be examined with reference to a matter within the scope of the inquiry or the investigation being conducted by the board and produce books, papers, records or documents pertaining thereto.”

      . See Governor’s Program Bill Mem, at 3, Bill Jacket, L 1986, ch 266 (stating section 230 [10] [a] [iv] was enacted to “broaden the investigative authority of the [OPMC]”); Letter from State Dept of Health, July 7, 1986, at 2, Bill Jacket, L 1986, ch 266 (stating that the. amendments would “enhance the State’s ability to identify incompetent physicians and monitor their compliance with conditions for continued practice”).


author: Per Curiam.

text:
    [836 NE2d 528, 802 NYS2d 642]
    In the Matter of David Gross.
    Decided September 21, 2005
    APPEARANCES OF COUNSEL

      Law Office of John F. Carman, Garden City {John F Carman and James E. Neuman of counsel), for David Gross.
   OPINION OF THE COURT

Per Curiam.

After arrest on federal money-laundering charges, Judge David Gross was administratively removed from the performance of his judicial duties by the Chief Administrative Judge, pending consideration of his suspension by this Court. Judge Gross’s suspension is uncontested; the only issue before us is whether his suspension will be with or without pay.

Section 44 (8) (c) of the Judiciary Law prescribes that a “judge or justice who is suspended from office by the court shall receive his judicial salary during such period of suspension, unless the court directs otherwise.” The statute creates a presumption in favor of suspension with pay, corresponding to the presumption of innocence that is basic to our justice system. In applying the statute in the context of pending criminal charges lodged against a judge, we must consider the statutory presumption as well as the issues of propriety and public confidence that arise when a judge is accused of wrongdoing. In this situation, the Court’s general practice—to which we conform today—has been to suspend with pay, unless the charged misconduct is directly connected with performance of the judicial office (e.g. Matter of Garson, 100 NY2d 533 [2003]). Should later information or other circumstances warrant, we may convert the suspension to one without pay (e.g. Matter of Brennan, 65 NY2d 564. [1985]).

Accordingly, it is the determination of the Court that Judge David Gross be suspended with pay, effective immediately.

Chief Judge Kaye and Judges G.B. Smith, Ciparick, Rosenblatt, Graffeo, Read and R.S. Smith concur in per curiam opinion.

On the Court’s own motion, it is determined that Honorable David Gross is suspended, with pay, effective immediately, from the office of Judge of the Nassau County District Court, Tenth Judicial District, pursuant to NY Constitution, article VI, § 22 and Judiciary Law § 44 (8).