Opinion
15724 Index No. 161368/20 Case No. 2021–03118
04-14-2022
In the Matter of Blaise COZZOLINO, Petitioner–Respondent, v. The NEW YORK STATE DIVISION OF HOUSING AND COMMUNITY RENEWAL, Respondent, Trump Park Avenue LLC et al., Intervenors–Respondents–Appellants.
Belkin, Burden, Goldman, LLP, New York (Magda L. Cruz of counsel), for appellants. Grimble & LoGuidice, LLP, New York (Robert Grimble of counsel), for Blaise Cozzolino, respondent. Mark F. Palomino, New York (Anita Shia of counsel), for The New York State Division of Housing and Community Renewal, respondent.
Belkin, Burden, Goldman, LLP, New York (Magda L. Cruz of counsel), for appellants.
Grimble & LoGuidice, LLP, New York (Robert Grimble of counsel), for Blaise Cozzolino, respondent.
Mark F. Palomino, New York (Anita Shia of counsel), for The New York State Division of Housing and Community Renewal, respondent.
Acosta, P.J., Kern, Gonza´lez, Shulman, JJ.
Judgment, Supreme Court, New York County (Frank P. Nervo, J.), entered on or about July 21, 2021, granting the petition brought pursuant to CPLR article 78 to annul the November 2, 2020 determination of respondent New York State Division of Housing and Community Renewal (DHCR), which denied petitioner's application for succession rights to an apartment as a nontraditional family member, and granting him succession rights as initially awarded by the DHCR Rent Administrator, and denying DHCR's motion to remand for further proceedings, unanimously affirmed, with costs.
Supreme Court correctly found, and DHCR conceded, that the determination was affected by an error of law ( CPLR 7803[3] ; see Matter of Zelig v. State of New York Div. of Hous. & Community Renewal, 189 A.D.3d 657, 659, 139 N.Y.S.3d 138 [1st Dept. 2020], lv dismissed 36 N.Y.3d 1079, 142 N.Y.S.3d 877, 166 N.E.3d 1055 [2021] [motion to remand is concession of error]). The denial was based solely on the absence of intermingled finances, even though "no single factor shall be solely determinative" ( Rent Stabilization Code [9 NYCRR] § 2520.6[o][2] ; accord Braschi v. Stahl Assoc. Co., 74 N.Y.2d 201, 213, 544 N.Y.S.2d 784, 543 N.E.2d 49 [1989] ). The absence of intermingled finances alone does not preclude a determination that petitioner and the deceased tenant of record "had a family-like relationship" ( RHM Estates v. Hampshire, 18 A.D.3d 326, 327, 795 N.Y.S.2d 214 [1st Dept. 2005] ).
We decline to remand the matter to DHCR for reconsideration (see CPLR 7806 ). The record was sufficiently developed to enable the court to render a final judgment, and remand is not appropriate where DHCR "is merely seeking a second chance to reach a different determination on the merits" ( Matter of Police Benevolent Assn. of N.Y. State Troopers v. Vacco, 253 A.D.2d 920, 921, 677 N.Y.S.2d 808 [3d Dept. 1998], lv denied 92 N.Y.2d 818, 684 N.Y.S.2d 489, 707 N.E.2d 444 [1998] ; see Matter of Pantelidis v. New York City Bd. of Stds. & Appeals, 43 A.D.3d 314, 315, 841 N.Y.S.2d 41 [1st Dept. 2007], affd 10 N.Y.3d 846, 859 N.Y.S.2d 597, 889 N.E.2d 474 [2008] ; cf. Matter of Zelig, 189 A.D.3d at 659, 139 N.Y.S.3d 138 [remanding " ‘for the submission of a complete record, further fact finding, and a new determination’ "]).