In the Matter of Kelley S. Boyd, Respondent,v.New York State Division of Housing and Community Renewal, et al., Appellants.BriefN.Y.June 24, 2014Court of Appeals State of New York 20 Eagle Street Albany, NY 12207 NMIC NORTIIERN MANHATIAN llvlPROVEMENT CORPORATION www.nmic.org Attn: Andrew W. Klein, Clerk of the Court RE: Matter of Boyd v. NYS DHCR APL-2014-00052 Subtnission pursuant to Rule 500.11 Dear Mr; Klein: May 12, 2014 We submit this letter on behalf of the Petitioner-Respondent Kelley Boyd (herein "Ms. Boyd" or "Tenant") pursuant to the Court's direction that Appellants New York State Division of Housing and Community Renewal ("DHCR") and 232/242 Realty Co. LLC, a/k/a/ Uptown Realty, and Robert Candee ("Landlord") proceed pursuant to Rule 500.11 in their appeal of Boyd v. Division of Housing and Community Renewal, 110 A.D.3d 594 (1st Dep't 2013). PRELIMINARY STATEMENT The First Department was correct in reversing the Supreme Court's dismissal of Ms. Boyd's Article 78 petition seeking annulment of DHCR's July 19, 2011, decision, which in tum had denied Ms. Boyd's Petition for Administrative Review ("PAR") ofDHCR's denial of her rent overcharge complaint. The First Department's decision is not only fully consistent with, but indeed, mandated by this Court's prior holdings, and the remand to DHCR for full consideration of evidence concerning the legality of the rents charged should proceed forthwith. In early 2009 Ms. Boyd challenged both Landlord's July 2005 registration of a tripling of the rent for the apartment she later moved into in 2007, and subsequently Landlord's incorrect claim that the apartment was now exempt from the Rent Stabilization Law ("RSL"), New York City Admin. Code§§ 26-501 et seq., and Rent Stabilization Code ("RSC"), 9 NYCRR §§ 2520 et seq. Ms. Boyd, although appearing pro se, marshaled and presented an impressive array of facts and Legal Services Department • 76 Wadsworth Ave. • New York, NY 10033-7049 TEL: 212-822-8300 • FAX: 212-740-9645 Writer's direct dial: 212-822-8309 • EMAIL: matthewchachere@nmic.org considerations to substantiate that this massive rent increase — subsequently defended by Landlord as based upon purported, but wholly unspecified, vacancy improvements to the apartment — appeared to be not only utterly fraudulent, but part and parcel of a scheme to deregulate her apartment. Only a few years ago, this Court affirmed the First Department’s ruling in Grimm v. DHCR, 68 A.D.3d 29, 33 (1st Dep’t 2009), aff’d, 15 N.Y.3d 358 (2010), which made it quite clear that In circumstances where... there is an indication of possible fraud that would render the rent records unreliable, it is an abuse of discretion for DHCR not to investigate it. (emphasis added). As will be summarized herein and has been set forth in significantly greater detail in Ms. Boyd’s Appellate Division briefs on review here, there were numerous and substantial “indication[s] of possible fraud” in the record that this then- unrepresented tenant presented to DHCR — the agency charged with the enforcement of the rent laws and with protecting tenants from illegal rent gouging. Yet despite the fact that Landlord here submitted absolutely no evidence to rebut Ms. Boyd’s detailed claims that Landlord’s purported and wholly unspecified improvements in her apartment were either non-existent or de minimus, DHCR — without any investigation or evidence whatsoever — speculatively concluded that unknown improvements, theoretically, might have been sufficiently costly to justify the rent increase. Under these facts, the First Department clearly had no choice but to find DHCR’s disparate treatment of the parties to be arbitrary, and reversed and remanded the matter to DHCR for further proceedings. ARGUMENT I. THE APPELLATE DIVISION’S DECISION WAS CONSISTENT WITH THE PUBLIC POLICY AND JURISPRUDENCE REPEATEDLY ARTICULATED BY THE COURTS This Court and the First Department have consistently and strictly rejected schemes that attempt to insulate landlords from rent regulation as contrary to public policy. See, e.g., Riverside Syndicate, Inc. v. Munroe, 10 N.Y.3d 18, 23 (2008) (reiterating policy of the rent stabilization laws that apartments should be rented at no more than the legal maximum, and rejecting agreements that “distort the market without benefitting the people the rent stabilization laws were designed to protect”); Thornton v. Baron, 5 N.Y.3d 175, 181 (2005) (decrying attempt to "circumvent the Rent Stabilization Law in violation of the public policy of New York"); Grimm v. -2- DHCR, 68 A.D.3d at 33, aff’d, 15 N.Y.3d 358 (protections afforded by the Rent Stabilization Law should not “be subverted to the detriment of those in need of affordable housing”). As explained in Drucker v. Mauro, 30 A.D.3d 37 (1st Dep't 2006): To permit a landlord to exceed the legal regulated rent [by enforcing a lease for an illegal rent]... would invite ready circumvention of the regulatory scheme through selective invalidation of provisions of the Rent Stabilization Law, severely compromising the protection it was intended to afford and eventually eviscerating the entire rent stabilization scheme. The pervasive policy of the statute is to provide an adequate supply of affordable housing in the City of New York. Id., at 39-40 (citations omitted).* In Thornton, this Court vigorously rejected the premise that landlords could defend fraudulently set rent levels by arguing – as both Landlord and DHCR assert here – that the claims were time barred, holding that in adopting the four-year rule in CPLR 213-a and RSL § 26-516(a) the Legislature never intended to “immunize dishonest [landlords] from compliance with the law:” The dissent would ignore defendants' fraudulent conduct and fix the rent at an amount likely soon to result in the apartment's permanent removal from rent stabilization, thereby rewarding the owner's wrongdoing. Under the dissent's rule, a landlord whose fraud remains undetected for four years — however willful or egregious the violation — would, simply by virtue having filed a registration statement, transform an illegal rent into a lawful assess- ment that would form the basis for all future rent increases. Indeed, an unscrupulous landlord in collusion with a tenant could register a wholly fictitious, exorbitant rent and, as long as the fraud is not discovered for four years, render * See, also, 390 W. End Assocs. v. Harel, 298 A.D.2d 11, 16 (1 Dep’t 2002):st The point is not to protect just a tenant, but to ensure the viability of the rent regulation system which protects tenancies in general, provides predictability to landlords, and significantly enhances the social, economic and demographic stability of New York City.... -3- that rent unchallengeable. That surely was not the intention of the Legislature.... Thornton, 5 N.Y.3d at 181 (emphasis added). Notwithstanding this Court’s clear statement of the law in 2005, DHCR nonetheless adopted an extremely constricted view of Thornton, which this Court pointedly rejected five years later in its Grimm decision: DHCR contends that our holding in Thornton should be constrained to the narrow set of circumstances described in that case and that we should limit its application to cases involving illusory tenancies. We disagree and conclude that, where the overcharge complaint alleges fraud, as here, DHCR has an obligation to ascertain whether the rent on the base date is a lawful rent. Grimm v. DHCR, 15 N.Y.3d at 366 (emphasis added).* Alas, Boyd demonstrates that DHCR remains unreconciled to this Court’s controlling decisions. As it did with Thornton, DHCR persists in limiting Grimm’s application "to the narrow set of circumstances described in that case." Id. DHCR articulated this in no uncertain terms in the administrative decision under review here when it flatly declared that the Commissioner will not conduct an examination of a tenant’s overcharge claim unless DHCR can equate ... a representation or statement by this owner with the facts in the Thornton case or the Grimm case. (emphasis addded)[R31]** It was precisely this sort of strict, fact-bound, rote reading of the case law that the Court rejected in Grimm, as had the Appellate Division (“DHCR should not be allowed to turn a blind eye to what could be fraud....” Grimm, 68 A.D.3d at 33 (emphasis added)). The First Department was likewise correct in rejecting it in Boyd. * Remarkably, DHCR’s letter brief to the Court in this appeal (at p.2) averts that Grimm merely “permitted DHCR to look back” under such circumstances (emphasis added). ** References to page numbers in the record on appeal are indicated as [R_]. -4- II. THE AMPLE INDICIA IN THE RECORD OF POSSIBLE FRAUD MANDATED AN INVESTIGATION BY D.H.C.R. DHCR would have it that tenants must first establish fraud before the agency is obligated to investigate. But Grimm required no such thing, holding that a tenant need make out only "an indication of possible fraud.....” 68 A.D.3d at 33, aff’d 15 N.Y.3d at 364 (emphasis added). Although the majority opinion below in Boyd apparently found it unnecessary to discuss the record in detail (and the dissent, regrettably, appeared to overlook it entirely), this was not by any means even a close case; the record developed thus far was replete with indicia of possible fraud, sufficient to impel DHCR to investigate. Without attempting to list them all, the following are just some of the many indicia in the record before DHCR — beyond those noted in the Appellate Division’s opinion — that easily give rise to a colorable basis to conclude that the “base date” rent registered by Landlord may have been part of a fraudulent scheme to remove the apartment from the ambit of rent stabilization: a. According to the Rent Registration History, [R180] Landlord had registered a rent stabilized lease for a two year term, from October 2002 through September 30, 2004, with one Minnie Jarkoff at a rent of $571.70. Yet the next tenancy appearing in the rent registration history, that of Marylin Ramos and Aleksey Teplitskiy (“Ramos/Teplitskiy”) indicates a massive rent increase to $1,750.00 — i.e., more than triple the prior rent — conveniently putting the rent to the level where the next vacancy increase would push it above the then-$2,000 high rent decontrol exclusion of RSL § 26-504.2(a).* Critically, the registration history does not indicate or otherwise explain the basis for this increase, other than vacancy (although at that time the permissible vacancy increase for a 1 year lease was 17%).** b. Landlord, in response to Ms. Boyd’s overcharge complaint, claimed that there was a never-before-disclosed intervening tenancy that lasted less than three months (prior to the Ramos/Teplinskiy lease) with one "Leeta Harding," in which the landlord allegedly disclosed a $975.35 rent increase to $1750.00 based on entirely unspecified improvements. * Indeed, the Landlord’s letter brief (at 4) declares that it asserted to DHCR that “the apartment was not subject to rent stabilization due to vacancy decontorl” (sic). ** This omission is certainly noteworthy, given that the same Landlord had twice before (in 1984 and 1998) indicated, in the rent registration history, “imprvmnt”(sic) to explain those rent increases. [R179-80] -5- [R115]* Landlord never registered this lease (wherein this 206% increase was purportedly disclosed and effectuated) with DHCR. To the contrary, while the Harding lease was purportedly signed on June 29, 2004 [R119], and commenced two days later on July 1, 2004 [R108], a month later Landlord registered the apartment with DHCR as "vacant" at a rent of $571.70 [R181]. According to Landlord, the purported tenant Harding moved out almost as soon as she moved in, per an undated letter, [R113] and purportedly the apartment was rented and occupied immediately by the Ramos/Teplinskiy tenants by September 30, 2004 [R123]. c. Landlord purportedly gave the tenants immediately prior to Ms. Boyd (Ramos/Teplitskiy) a rent stabilization rider that claimed a Legal Regulated Rent (“LRR”) of $2,047.50. [R125]. The rider asserted that the LRR for the Ramos/Teplitskiy tenancy was based on a "last registered lease" allegedly registered on April 1, 2004, at $1,750.00, plus the statutory vacancy increase of 17% ($297.50). [R125] In fact, no such prior lease at $1,750.00 was ever registered, nor was there a lease in effect on April 1, 2004, at $1,750.00. [R181] To the contrary, the Landlord had registered the apartment on July 31, 2004, as vacant, with a legal regulated rent of $571.70. [R181] Thus, the rider was both false and grossly misleading. d. Although the rider to the Ramos/Teplitskiy lease represented that the LRR was $2,047.50 (i.e, a level above the $2,000 high rent destabiliza- tion benchmark in RSL § 26-504.2), no such LRR was ever registered for that tenancy. [R181] Instead, the rider (and the rent registration) indicated the Ramos/Teplitskiy’s rent would be $1,750. Thus, the rider was again false, and appeared to be intended to mislead those tenants * All six pages of the rent stabilization rider allegedly provided to Harding stated at the bottom that it was prepared on "5/24/02" — i.e., nearly a year after the rider was prepared for the subsequent Ramos/Teplitskiy tenants on 7/24/01 -- yet the rider stated that the apartment was last registered on April 1, 2004 [R115] (i.e., a future date). Likewise, every page of the rider allegedly provided to the Ramos/Templitskiy tenants indicated that the document was prepared on "7/24/01," but the rider stated that the apartment was last registered on April 1, 2004 [R125] (again, a future date). The facial irregularities poised by these dates at the very least should have given rise to question whether the documents were in fact contemporaneously prepared and provided to the purported predecessor tenants at the time the leases were signed (rather than at some other time, or at all). -6- into thinking they were getting a great “deal” by paying the same rent as the purported prior tenant and almost $300 less than the purported “legal” rent. e. The Ramos/Teplitskiy lease [R123] had the additional terms “apartment as is" hand written in — hardly something one would expect to encounter immediately after a purported $39,000 renovation (notwith- standing DHCR’s speculation – without any investigation at all – that a landlord theoretically “could have” spent $39,000 updating this one- bedroom apartment [R31-32]).* f. Ms. Boyd’s initial lease [R137-140] did not explicitly state the apart- ment was subject to rent stabilization. Somewhat ambiguously, however, the rent stabilization rider attached to it indicated that the apartment “was rent stabilized when the last tenant moved out,” (emphasis added) [R149]. The rider claimed that the new LRR would now be $2,119.17, [R149] but Landlord never registered the apartment at this rent amount [R181]), and indicated Ms. Boyd’s rent at $2,000.00 — perhaps to mislead her into thinking she was getting some sort of a “bargain” by paying less than the LRR (just as the prior Ramos/Teplit- skiy tenants). In fact, however, Landlord registered the LRR for this first Boyd lease at $2,000. [R156]. g. A vacancy increase of the LRR to $2,000 or greater would, of course, mean that the apartment would ordinarily henceforth be excluded from rent regulation per RSL § 26-504.2(a) (“high rent deregulation”) – as Landlord would indeed later claim, as discussed below. [R165] However, RSL § 26-504.2(b) requires that within 30 days a landlord must give a written certification to the first tenant after the unit becomes destabilized by the high rent exclusion setting forth, inter alia, N the last regulated rent, N the reason why the unit is no longer subject to the RSL, N “a statement that the last legal regulated rent may be verified by the tenant by contacting [DHCR],” and * This is all the more curious given that the lease already provided, in ¶ 2 thereof, that it was being rented “As Is” [R120]; apparently the Landlord felt it needed to emphasized this lease condition, notwithstanding the purported major renovation that had just taken place. -7- N a copy of the prior rent registration, all via certified mail. Landlord – who apparently maintained extensive records for the apartment going back to 1972 [R104] – put nothing in the record to indicate that it ever complied with this statutory mandate, either with the Ramos/Templitskiy tenants (when Landlord falsely claimed a LRR of $2,047.50 in 2004) or Ms. Boyd. Had the Landlord given such notice, perhaps either Ms. Boyd or the Ramos/Teplitskiy tenants might have found out about the claimed deregulation and challenged it sooner. h. In 2009, rather than provide Ms. Boyd a standard DHCR rent stabilized lease renewal (form “RTP-8") as required by RSC § 2523.5(a),* Landlord instead gave Tenant an entirely new lease (without a rent stabilization rider, as required by RSC § 2522.5) [R186-191], which only furthered Landlord’s ability to subsequently and misleadingly claim to DHCR that this was not — any longer — a rent stabilized apartment. i. On top of these irregularities, on May 20, 2009, Landlord, advised by experienced Landlord-Tenant counsel, represented to DHCR that the apartment was no longer subject to RSL because of high rent regulation [R165-67], even though the apartment was receiving J-51 tax benefits (Administrative Code § 11-243) and thus could not be decontrolled by virtue of high rent, as the Appellate Division had ruled months earlier in Roberts v. Tishman Speyer Properties, L.P., 62 A.D.3d 71 (1st Dep’t 2009), aff’d 13 N.Y.3d 270 (2009). [R64] All of the foregoing indicia are in addition to those noted in the Appellate Division’s holding, such as that Landlord did not submit a scintilla of evidence (receipts, checks, affidavits, permits, photographs, and so forth) that any improve- ments took place, or indeed even deign to state the nature of the improvements.** To be sure, Grimm held that * Landlord was certainly familiar with and had used the official DHCR lease renewal forms in the past for this apartment. [R203-204] ** Ms. Boyd certainly tried her best to figure out what the improvements could possibly have been, since none appeared to be obvious. For example, research by her State Senator’s community liaison reported that no Department of Building permits had been issued for renovations in the apartment, so clearly there had been no wiring or plumbing upgrades.[R229] She also learned that the windows had already been replaced in 1972 [R215]. -8- Generally, an increase in the rent alone will not be suffi- cient to establish “a colorable claim of fraud” and a mere allegation of fraud alone, without more, will not be suffi- cient to require DHCR to inquire further. Id., 15 N.Y.3d at 367.* But there was clearly far “more” here. Perhaps not surprisingly, DHCR argues in its letter brief that this Court should simply disregard all these indicia as “tangential” since they weren’t specifically relied upon in the written opinion of the Appellate Division’s majority . And indeed, the majority may very well have found that Ms. Boyd’ carefully delineated analysis that there could not possibly have been $39,000 of qualifying improvements in her apartment [R215-16] — wholly unrebutted by Landlord or DHCR — sufficient in and of itself to compel further investigation. But Grimm also requires that DHCR consider “the combination of ... factors” id.. at 366, rather than to “act arbitrarily in disregarding the nature of petitioner’s allegations.” Id. at 367. Thus, consideration of all the foregoing indicia in the record was mandated in order to determine if they were, collectively, sufficient “colorable” indicia of a possibly fraudulent scheme. In other words, were these, perhaps, all part of a calculated scheme to evade scrutiny — for a least the necessary four years — of a massive and illegal rent increase to just under the magic $2,000 level, and thence, after the next vacancy, proclaim a high rent deregulation? That appearance of all the elements of such a scheme to “fly below the radar” should have seemed obvious: ! Even assuming the purported intervening tenancy of Leeta Harding actually existed, Ms. Harding would have had little incentive or time to challenge the tripling of the rent given that she would have lived in the apartment for at most less than 3 months, and probably far less (if she indeed ever lived there at all).** * DHCR’s letter brief construes the Grimm decision’s description of the indicia in that case as “substantial” as thereby adopting that terminology for the applicable standard, even though the Court clearly enunciated that the general standard for these situations was “colorable.” Id. at 367. But whether this is a merely a matter of semantics or a genuinely different standard, the indicia here were clearly sufficient under both Grimm and Thornton. ** Notably, while Landlord’s submissions to DHCR included rent ledgers for the Ramos/Teplinskiy tenancy,[R205-07] none were produced for the purported Harding tenancy. The momentary tenancy of the elusive Ms. Harding was at least unusual (although illusory short-term intervening tenancies are not unusual features of rent overcharge schemes; see, e.g., 506 West 150th St. LLC. v Prier, 36 Misc.3d 1201(A) (Civil Ct. N.Y. Co. 2012)). -9- ! Certainly, the Ramos/Teplinskiy tenants would have had absolutely no apparent reason to suspect that their rent was illegal — the rider to their first lease could only have led them to conclude they were getting a “bargain” by paying the same rent as the (purported) prior tenant and $300 less than the LRR, rather than being overcharged; particularly as the rider falsely stated that the last registered rent was $1,750.00, rather than $571.70.* ! Ms. Boyd was similarly mislead that she was getting a “deal” by paying significantly less than a purported LRR (that was never registered as such). And thus predictably, when Ms. Boyd finally figured out (just past the four year deadline) that she was probably being overcharged and how to properly challenge to it, Landlord – which had told her all along that her tenancy was rent stabilized and in fact registered her lease as such** – sprang its trap, now telling DHCR: The current tenant took occupancy after the apartment became vacant and the rent charged could have been legally more than $2,000.0 including the legal increase. Therefore this tenant and apartment is no longer subject to Rent Stabilization. [R167] Ms. Boyd, of course, quite understandably asked DHCR: “If Mr. Candee believed the apartment were no longer rent stabilized when I took occupancy, then why did he give me a Rent Stabilization Lease Rider?” [R218]*** The scheme was thus staring DHCR in the face. In sum, these indicia created the appearance of a “perfect storm” for obfuscation of an illegal rent increase that — but for Ms. Boyd’s diligence almost * As in Grimm, where “[t]he tenants immediately preceding petitioner were never given a rent-stabilized lease rider,” 68 A.D.3d at 33, here the tenants immediately prior to Ms. Boyd were given a false one. Either way the impact of such evasions is the same. ** As noted earlier, Landlord apparently gave neither Ramos/Teplinskiy tenants nor Ms. Boyd a § 26-504.2(b) notice of high rent deregulation. *** Landlord’s family appears to have owned this 42 unit rent regulated apartment building for at least 42 years (see 1972 lease for apartment at [R107]). Yet Landlord’s letter brief now asserts for the first time – and without any supporting record reference and with breathtaking implausibility – that Landlord simply “did not realize the rent charged to the tenant was above the vacancy decontrol amount of $2,000 until he was informed by his attorney during the ... DHCR proceeding.” -10- from the moment she realized that the Landlord might be attempting to evade the Rent Stabilization Law — might never have come to light. And Ms. Boyd’s persistent efforts to make out those circumstances and prod DHCR into investigating certainly went far beyond what a typical unrepresented tenant should have to undertake. Indeed, she even sought the assistance of numerous public officials, among them the Manhattan Borough President [R176], her State Senator [R229], and the Public Advocate, who urged DHCR to investigate "the complainant's allegation of a fraudulent rent increase one year prior to the beginning of the calculated base period."[R65]* But DHCR, perhaps because of its “obvious discomfort ... [with] the sheer number of cases” (DHCR letter brief at 14), still appears resolute in turning “‘a blind eye to what could be fraud and an attempt by the landlord to circumvent the Rent Stabilization Law’” Grimm, 15 N.Y.3d at 364. Indeed, if the indicia presented here were insufficient to impel DHCR to carry out its mandate to at least investigate to determine whether and what alleged improvements actually took place (and at the cost ascribed to them), its hard to imagine what can suffice, other than a fact pattern identical to Grimm or Thornton, as DHCR appears to believe.[R31] While both Appellants obviously favor the dissenting opinion below, that opinion is premised upon multiple errors and misperceptions. First, the dissent asserts that Ms. Boyd did not “assert that she has any relevant experience qualifying her to opine on the value of the work done.” 110 A.D.3d at 596. This is just flatly wrong; Ms. Boyd's statement of her relevant qualifications was both formidable and wholly unrefuted, as she told DHCR that before moving to New York she had worked as a property manager managing, building and renovating apartments for four years, and have been involved with the construction of hundreds of homes between the years 2000-2003. [R215] Neither DHCR nor the dissent had any basis to ignore or discount Ms. Boyd’s statement. How much more qualification would DHCR require than that? Second, the dissent asserted that the Landlord “complied with all the rent registration requirements,” id. at 597, which it clearly did not, as discussed above. Third, the dissent characterized the complaint as resting solely upon a rent bump from * Ms. Boyd also sought to subpoena the relevant records [R331, 355], an effort stymied by Appellants’ successful motions to quash. [R318, 361] -11- improvements, id., — thus ignoring the panoply of other indicia discussed above. Finally, as to Point II of Landlord’s letter brief, which unaccountably attempts to raise at the Court of Appeals a cross-appeal from an interim order of the Supreme Court (not the Appellate Division), suffice it to say that a decision from which Landlord never even filed or perfected an appeal is simply not reviewable in any appellate court. CONCLUSION In sum, there is no basis for reversal. This Court’s decisions make it abundantly clear that DHCR must investigate fraudulent rent setting under a broad set of circumstances, in which those presented by Ms. Boyd’s case are easily encompassed. Of course, Ms. Boyd’s case does not exist in a vacuum. Indeed, the City of New York’s ten-year housing plan, “Housing New York”, released just last week,* indicated that 250,000 units of rental housing lost the protections of rent regulation since 1994, the majority through high-rent decontrol (as Landlord attempted here). Id. at 22, 52. While there is no way of telling how many of these units were lost to fraud, the dire implications of relaxing DHCR’s duties, rather than reinforcing them, are obvious. Fraudulent schemes to evade rent regulation will surely come in as many flavors as dishonest but creative owners can devise, and if DHCR continues to assert that it is bound to investigate and protect tenants such as Ms. Boyd only when the scheme exactly mimics Thorton or Grimm, the loss of affordable housing in New York City through illegal conduct can only continue apace. As the First Department has previously explained: Our long-established public policy of preserving a moder- ate-priced housing stock in New York City, based on a legislative finding of an emergency shortage of affordable housing which exists up to the present, has been carefully codified in rent statutes and regulations, for which a comprehensive body of case law has evolved. This policy must be accorded primacy in the present dispute.... Harel, 298 A.D.2d at 14. For the above reasons, and those set forth in the briefs submitted by Ms. Boyd * Available at www.nyc.gov/html/housing/assets/downloads/pdf/housing_plan.pdf (last viewed May 9, 2014) -12- at the Appellate Division and as well in the well-reasoned majority decision by the Appellate Division in Boyd, the decision below should be affirmed, and the remand to DHCR should proceed so that a full factual record can be developed. Respectfully Submitted, KENNE OSENFELD,ESQ. NORT ERN MANHATTAN IMPROVEMENT CORPORATION LEGAL SERVICES Attorneys for Petitioner-Respondent Kelley Boyd BY: Kenneth Rosenfeld Matthew J. Chachere 7 6 Wadsworth A venue New York, NY 10033 212-822-8300 -13-