In the Matter of Alicia Echevarria, Appellant,v.Matthew M. Wambua,, et al., Respondents.BriefN.Y.October 21, 2015To be Argued by: ROBERT J. BERGSON (Time Requested: 20 Minutes) APL-2014-00260 New York County Clerk’s Index No. 103396/12 Court of Appeals of the State of New York In the Matter of the Application of ALICIA ECHEVARRIA, Petitioner-Appellant, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules – against – MATTHEW M. WAMBUA, as Commissioner of the City of New York Department of Housing Preservation and Development, EAST MIDTOWN PLAZA HOUSING COMPANY, MARK ANDERMANIS and SANDRA ANDERMANIS, Respondents-Respondents. BRIEF FOR RESPONDENT-RESPONDENT EAST MIDTOWN PLAZA HOUSING COMPANY ABRAMS GARFINKEL MARGOLIS BERGSON, LLP Attorneys for Respondent-Respondent East Midtown Plaza Housing Company 1430 Broadway, 17th Floor New York, New York 10018 Tel.: (212) 201-1170 Fax: (212) 201-1171 COURT OF APPEALS OF THE STATE OF NEW YORK IN THE MATTER OF THE APPLICATION OF ALICIA ECHEVARRIA, Petitioner-Respondent, FOR A JUDGMENT PURSUANT TO ARTICLE 78 OF THE CIVIL PRACTICE LAWS AND RULES -against- MATTHEW M. WAMBUA, AS COMMISSIONER OF THE CITY OF NEW YORK DEPARTMENT OF HOUSING PRESERVATION AND DEVELOPMENT; EAST MIDTOWN PLAZA HOUSING COMP ANY; MARK ANDERMANIS; and SANDRA ANDERMANIS Respondents-Respondents. New York County Index No. 103396/2012 CORPORATE DISCLOSURE STATEMENT PURSUANT TO RULE 500.l(Q Pursuant to Court of Appeals Rule 500.l(t) (22 NYCRR § 500.l(t)), the undersigned counsel for Respondent-Respondent East Midtown Plaza Housing Company certifies that it has no parents, subsidiaries or affiliates. [signature page follows] Dated: New York, New York February 20, 2015 2 ABRAMS GARFINKEL MARGOLIS BERGSON, LLP By: -l~ti ~ Robert ~ ergSOilf 1430 Broadway, 17th Floor New York, New York 10018 (212) 201-1170 Attorneys for Respondent-Respondent East Midtown Plaza Housing Company i TABLE OF CONTENTS Page PRELIMINARY STATEMENT ................................................................. 1 STATEMENT OF FACTS .......................................................................... 4 ARGUMENT POINT I THE FIRST DEPARTMENT CORRECTLY HELD THAT APPELLANT LACKS STANDING BECAUSE SHE IS NOT ELIGIBLE TO OCCUPY THE APARTMENT ...................................... 6 POINT II APPELLANT’S POLICY ARGUMENTS ARE WITHOUT MERIT .... 12 POINT III THE COURT SHOULD DISREGARD APPELLANT’S ARGUMENTS BASED ON FACTUAL ASSERTIONS THAT ARE NOT IN THE RECORD ...................................................... 13 CONCLUSION ............................................................................................ 19 ii TABLE OF AUTHORITIES Page(s) Cases: Borysewski v. Brydges, 37 N.Y.2d 361, 372 N.Y.S.2d 623 (1975) ............. 13 Brown v. County of Erie, 60 A.D.3d 1442, 876 N.Y.S.2d 801 (4th Dep’t 2009) ....................................................................................... 8 Brunswick Smart Growth, Inc. v. Town of Brunswick, 73 A.D.3d 1267, 901 N.Y.S.2d 387 (3d Dep’t 2010) .......................................................... 7 Clark v. Town Bd. of Town of Clarkstown, 28 A.D.3d 553, 812 N.Y.S.2d 643 (2d Dep’t 2006) .......................................................... 7, 8n.2 Gramercy Co. v. Benenson, 223 A.D.2d 497, 637 N.Y.S.2d 383 (1st Dep’t 1996) ........................................................................................ 15 Hoston v. New York State Dep’t of Health, 203 A.D.2d 826, 611 N.Y.S.2d 61 (3d Dep’t 1994) ............................................................ 6 In re New York State Ass’n of Community Action Agency Board Members v. Shaffer, 119 A.D.2d 871, 500 N.Y.S. 838 (3d Dep’t 1986) ................. 10 In the Matter of Jerkens Truck & Equipment, Inc. v. City of Yonkers, 174 A.D.2d 127, 579 N.Y.S.2d 417 (2d Dep’t 1992) .............................. 10, 11 Kahn v. City of New York, 37 A.D.2d 520, 321 N.Y.S.2d 791 (1st Dep’t 1971) aff’d, 30 N.Y.2d 690 (1972) ......................................... 13 Matter of Bradford Cent. School Dist. v. Ambach, 56 N.Y.2d 158, 451 N.Y.S.2d 654 (1982) ......................................................................... 13 Matter of Burke v. Sugarman, 35 N.Y.2d 39, 358 N.Y.S.2d 715 (1974) .... 9, 10 Matter of Sun–Brite Car Wash, Inc. v. Board of Zoning & Appeals of the Town of N. Hempstead, 69 N.Y.2d 406, 515 N.Y.S.2d 418 (1987) ......... 6 Mendoza v. Plaza Homes, LLC, 55 A.D.3d 692, 865 N.Y.S.2d 342 (2d Dep’t 2008) ........................................................................................ 14 iii Mount Lucas Associates, Inc. v. MG Ref. & Mktg., Inc., 250 A.D.2d 245, 682 N.Y.S.2d 14 (1st Dep’t 1998) ............................................................ 14 New York State Ass’n. of Nurse Anesthetists v. Novello, 2 N.Y.3d 207, 778 N.Y.S.2d 123 (2004) ......................................................................... 6 QBE Ins. Corp. v. Jinx-Proof Inc., 22 N.Y.3d 1105, 983 N.Y.S.2d 465 (2014) ........................................................................................................ 13, 15 Roberts v. Health & Hosps. Corp., 87 A.D.3d 311, 928 N.Y.S.2d 236 (1st Dep’t 2011) ........................................................................................ 6 Society of Plastics Indus. v. County of Suffolk, 77 N.Y.2d 761, 570 N.Y.S.2d 778 (1991) ......................................................................... 9 Respondent-Respondent East Midtown Plaza Housing Company (“EMP”) respectfully submits this brief in opposition to the appeal of Petitioner-Appellant Alicia Echevarria (“Appellant” or “Echevarria”), from the Decision and Order, dated April 1, 2014 of the Appellate Division, First Department (the “April 1 Order”).1 PRELIMINARY STATEMENT This appeal arises from an Article 78 proceeding commenced by Petitioner challenging the decision of Respondent City of New York Department of Housing Preservation and Development (“HPD”) to approve the transfer of a four-bedroom apartment (the “Apartment”) at EMP (a Mitchell-Lama development overseen by HPD) to Respondents Mark Andermanis and Sandra Andermanis (the “Andermanis Respondents”) on the grounds that HPD’s decision violated lawful procedure. The Article 78 petition (the “Petition”) seeks an order reversing HPD’s decision, compelling the Andermanis Respondents and their three children to vacate the Apartment, and requiring HPD to implement a process consistent with its own rules. As the First Department recognized, glaringly absent from the Petition is any allegation that Petitioner has the right to occupy the Apartment or that but for HPD’s alleged violation of lawful procedure, Appellant would have been awarded 1 The Brief for Petitioner-Appellant, dated December 22, 2014, shall be referred to as “Appellant’s Brief.” 2 a transfer to the Apartment or otherwise suffered an injury-in-fact specific to Appellant that was different in kind and degree than that allegedly sustained by the community at large. Indeed, even if the relief sought by the Petition were granted, Appellant undisputedly would not be granted a transfer to the Apartment. This is because there is no dispute that Appellant is not eligible to receive a four-bedroom apartment at EMP, which means it is impossible for Petitioner to incur a direct injury as the result of HPD’s decision regarding the subject four-bedroom Apartment. New York law is clear that where, as here, Appellant is not eligible to receive a particular benefit, Appellant does not have standing to challenge an administrative decision concerning that benefit. The April 1 Order is in accord with this authority and correctly held that Appellant lacks standing: It is undisputed that petitioner, also the head of a five-person household living in a two-bedroom apartment in the building, was not eligible for the four-bedroom apartment at issue due to the same HPD rule, and although she expressed interest, she never actually submitted an application for the apartment. Moreover, HPD has stated that it has since concluded that it did not have the authority to grant an occupancy waiver for the reasons presented here, and that if a remand were granted it would rescind the approval granted to the Andermanises, and would instead conduct an external search for applicants meeting the six-person occupancy requirement. Hence, petitioner remains ineligible for the four-bedroom apartment and cannot show that she has suffered an injury that is personal and distinct from that of the general public, or that she has an actual legal stake in the outcome of this proceeding. Accordingly, petitioner did not have standing to initiate this proceeding. 3 Appellant’s arguments are misplaced because they go no further than challenging the alleged impropriety of HPD’s administrative decision to grant the four-bedroom Apartment to the Andermanis Respondents, but the propriety of HPD’s decision has no bearing on the issue of standing. While Appellant may take issue with HPD’s decision, Appellant cannot show that any injury she allegedly sustained by virtue of HPD’s decision is any different from any alleged injury to the community at large. Appellant disingenuously argues that the April 1 Order is based on the fact that Appellant “did not submit an application for the subject four-bedroom apartment.” See Appellant’s Brief at 2. The Court should reject this mischaracterization. A plain reading of the April 1 Order confirms that the First Department expressly held that Appellant lacks standing because she is not eligible to occupy the Apartment. Appellant desperately attempts to overcome her insurmountable eligibility problem by advancing arguments based on purported facts that are not in the record. As a matter of law, these arguments should not even be considered. In any event, as demonstrated below, they do not provide a basis for disturbing the April 1 Order. For these reasons, EMP respectfully submits that the April 1 Order should be affirmed. 4 STATEMENT OF FACTS Petitioner commenced this Article 78 proceeding by way of the Petition, dated July 27, 2012. (R.21-33). The Petition seeks an order (a) declaring improper HPD’s decision to approve the transfer of the Apartment to the Andermanis Respondents on the grounds that such decision was in violation of lawful procedure, arbitrary and capricious, (b) reversing HPD’s transfer decision, (c) compelling the Andermanis Respondents and their three children to vacate the Apartment, (d) compelling HPD to implement a process consistent with its own rules to determine which, if any, EMP cooperator is eligible for transfer to the Apartment and (e) compelling EMP to comply with HPD’s rules concerning waiting lists. (R.32). Although Petitioner alleges that the award of the Apartment to the Andermanis Respondents was improper, nowhere in the Petition is it alleged that but for HPD’s conduct, Petitioner would have been granted the Apartment or was otherwise deprived of a right or entitlement personal to Petitioner. EMP cross-moved to dismiss the Petition, arguing that the proceeding should be dismissed as a matter of law for lack of standing because the Petition fails to allege that Petitioner sustained a direct, injury-in-fact as a result of HPD’s decision to approve the transfer to the Andermanis Respondents. (R.43). HPD cross-moved to remand the matter so that HPD can rescind the approval of the transfer of the Apartment and process the transfer in accordance 5 with the operative rules and regulations (“HPD’s Cross-Motion”). (R.67). The Andermanis Respondents opposed HPD’s Cross-Motion, arguing, inter alia, that Petitioner lacked standing. (R.78.1). The lower Court rejected EMP’s argument that the Petition fails to allege an injury-in-fact specific to Petitioner and held that Petitioner has standing. (R.13- 20). The lower Court reasoned that “[P]etitioner is harmed when another tenant family is jumped to the front of the line” and that “[s]uch preferential treatment harms petitioner because it delays her eventual ascension to the top of the list.” (R.18). As the First Department correctly held, however, the lower Court’s reasoning was flawed because it presupposes that Petitioner was on a waiting list that made her eligible for a transfer to the subject four-bedroom Apartment to begin with, which she was not. The record shows, and Petitioner concedes, that Petitioner was only on a waiting list for a three bedroom apartment; Petitioner was never on the waiting list for a four-bedroom apartment. 6 ARGUMENT POINT I THE FIRST DEPARTMENT CORRECTLY HELD THAT APPELLANT LACKS STANDING BECAUSE SHE IS NOT ELIGIBLE TO OCCUPY THE APARTMENT Standing is a “threshold requirement for a [petitioner] seeking to challenge governmental action.” New York State Ass’n. of Nurse Anesthetists v. Novello, 2 N.Y.3d 207, 211, 778 N.Y.S.2d 123, 125 (2004). To establish standing, Appellant “must show ‘injury-in-fact,’ meaning that [Appellant] will actually be harmed by the challenged administrative action.” Id. To have suffered an “injury-in-fact,” Appellant must show “special damage, different in kind and degree from the community generally.” Matter of Sun–Brite Car Wash, Inc. v. Board of Zoning & Appeals of the Town of N. Hempstead, 69 N.Y.2d 406, 413, 515 N.Y.S.2d 418, 421 (1987). The alleged injury must be “personal to the party; i.e., distinct from that of the general public.” Roberts v. Health & Hosps. Corp., 87 A.D.3d 311, 317, 928 N.Y.S.2d 236, 242 (1st Dep’t 2011). Further, the injury-in-fact alleged must not be speculative and “must be more than conjectural.” Novello, 2 N.Y.3d at 211, 778 N.Y.S.2d at 125. “A party does not have standing to contest an administrative determination unless he or she has in fact been injured by the decision.” Hoston v. New York State Dep’t of Health, 203 A.D.2d 826, 827, 611 N.Y.S.2d 61, 62 (3d Dep’t 1994). “Potential 7 general harm does not constitute direct harm.” Brunswick Smart Growth, Inc. v. Town of Brunswick, 73 A.D.3d 1267, 1268, 901 N.Y.S.2d 387, 388 (3d Dep’t 2010). Pursuant to this authority, the First Department correctly held that Appellant does not have standing because it is undisputed that Appellant is not eligible to occupy the Apartment. See April 1 Order. It is likewise undisputed that if the relief sought by the Petition were granted – which is the best possible outcome for Appellant – Appellant would not be awarded the Apartment. Therefore, the April 1 Order should be affirmed. There is no dispute that to be eligible for the four-bedroom Apartment, the occupant must be comprised of a six person family. (R.75, ¶13). There is also no dispute that Petitioner alleges that her family has five members. (R.26, ¶17). Thus, if, as is alleged in the Petition, “[t]he Court should [ ] order that a new process, in compliance with all applicable rules, take place to determine which, if any, EMP cooperator is eligible to [the] Apartment” (R.25, ¶12), the Apartment undisputedly will not be transferred to Petitioner. This undisputed fact confirms that Petitioner lacks standing. See Clark v. Town Bd. of Town of Clarkstown, 28 A.D.3d 553, 554-55, 812 N.Y.S.2d 643, 645 (2d Dep’t 2006) (holding that petitioner, who challenged a police chief appointment, did not have standing because the petitioner “was not an applicant for the position of police chief, nor 8 was he eligible to become the police chief. Accordingly, he failed to show that he sustained any injury in fact as a result of the appointment of a new police chief, or as a result of the procedures used in the appointment.”).2 In Brown v. County of Erie, 60 A.D.3d 1442, 876 N.Y.S.2d 801 (4th Dep’t 2009), the petitioners claimed that a public works project was awarded to a contractor that was not eligible to receive it, and that the award should be invalidated. Id. at 1443, 876 N.Y.S.2d at 802-03. The Brown petitioner did not claim that it should have been awarded the public works project, but rather that the project should have been awarded to a non-party who allegedly satisfied the eligibility criteria. Id. The Court held that the petitioners did not have standing because “they failed to establish that the administrative action will in fact have a harmful effect on them.” Id. at 1444, 876 N.Y.S.2d at 803. Here, too, Appellant does not – indeed, cannot – allege that HPD’s administrative action in granting the Andermanis Respondents the right to occupy the subject Apartment had a harmful effect on Appellant. Those with standing to challenge HPD’s decision to grant an exception to the Andermanis Respondents to occupy the Apartment are families comprised of six members who otherwise meet HPD’s eligibility requirements for placement in 2 Appellant’s attempt to distinguish Clark on the grounds that she was eligible for the Apartment is contradicted by facts in the record – namely Appellant’s admission that she is not eligible for the Apartment. 9 a four-bedroom apartment. Appellant admittedly does not satisfy these eligibility requirements. Since the Petition does not seek to redress an alleged injury in fact to Appellant, reversing the April 1 Order and reinstating the lower Court’s Decision would accomplish nothing more than affirmance of an advisory opinion, which is exactly what the doctrine of standing is designed to avoid. See, e.g., Society of Plastics Indus. v. County of Suffolk, 77 N.Y.2d 761, 773, 570 N.Y.S.2d 778, 785 (1991) (“The requirement of injury in fact for standing purposes is closely aligned with our policy not to render advisory opinions”). The cases Appellant cites to hold that eligibility is a fundamental prerequisite to standing, and thus they do not support Appellant’s attempt to challenge HPD’s decision concerning the Apartment that she undisputedly is not eligible to occupy. In Matter of Burke v. Sugarman, 35 N.Y.2d 39, 358 N.Y.S.2d 715 (1974) (cited in Appellant’s Brief, passim), the petitioners had standing because, unlike Appellant, they alleged that they were on a waiting list of eligible candidates. See Sugarman, 35 N.Y.2d at 42, 358 N.Y.S.2d at 716 (holding that the petitioners “have standing to seek removal of persons allegedly appointed or designated contrary to law” because the petitioners were “placed on an eligible list for appointment”). Therefore, the April 1 Order’s holding that Appellant does not 10 have standing to challenge HPD’s decision regarding the Apartment because she undisputedly is not eligible to occupy the Apartment, is consistent with Sugarman. Likewise, in In re New York State Ass’n of Community Action Agency Board Members v. Shaffer, 119 A.D.2d 871, 500 N.Y.S. 838 (3d Dep’t 1986) (see Appellant’s Brief, passim), the petitioners had standing to challenge a decision to award public funds to parties who were not eligible to receive them because the petitioners themselves were eligible to receive the funds. 119 A.D.2d at 875, 500 N.Y.S. at 841. Again, the April 1 Order is consistent with Shaffer because in both cases the factor of eligibility was dispositive. In In the Matter of Jerkens Truck & Equipment, Inc. v. City of Yonkers, 174 A.D.2d 127, 579 N.Y.S.2d 417 (2d Dep’t 1992), the petitioner, an unsuccessful bidder on a public contract to provide refuse collection vehicles, had standing to challenge the award of the contract because “the petition contained allegations of direct injury [by] alleg[ing] that, but for the City’s improper actions, it would have been awarded the contract as the lowest bidder.” 174 A.D.2d at 131, 579 N.Y.S.2d at 420. In contrast, here, the Petition does not allege that but for HPD’s allegedly improper actions, Appellant would have been awarded the Apartment. Thus, Jerkens is yet another illustration that, regardless of the alleged impropriety of an administrative decision, eligibility is essential for the threshold issue of standing to challenge the decision. 11 Appellant argues that the petitioner in Jerkens had standing even though it “could never establish entitlement to a contract.” See Appellant’s Brief at 13. Tellingly missing from this description is that the lower Court in Jerkens precluded the petitioner from offering critical evidence to support its claim. The Second Department recognized that “the order of preclusion effectively prevents the petitioner from establishing that the contract should have been awarded to it” (174 A.D.2d at 131, 579 N.Y.S.2d at 420), which has nothing to do with the foundational fact that the petitioner was eligible to be awarded the contract in the first place. Thus, Jerkens is in line with the cases cited above and the April 1 Order because the order of preclusion in Jerkens, which had nothing to do with the petitioner’s standing, prevented the petitioner from establishing entitlement to the contract; whereas here, Appellant’s admitted inability to satisfy the eligibility requirements, which has everything to do with her lack of standing, prevents her from establishing entitlement to the Apartment. Appellant argues that HPD’s decision delayed her ascension on the three- bedroom apartment waiting list. See Appellant’s Brief at 14. This argument re- states the flawed reasoning utilized by the trial Court, which was correctly rejected by the First Department. The Appellant’s wait for the next available three- bedroom apartment was not affected one iota as a result of HPD’s decision to 12 permit the Andermanis Respondents to move into the subject four-bedroom Apartment. For these reasons, the April 1 Order should be affirmed. POINT II APPELLANT’S POLICY ARGUMENTS ARE WITHOUT MERIT Appellant argues that the April 1 Order causes a “substantial injustice.” See Appellant’s Brief, Point II. However, this argument is contradicted by the fact that, as demonstrated above, there are no circumstances in which Appellant will receive the Apartment. HPD’s decision did not and cannot deprive her of the Apartment or of any tangible benefit associated with the Apartment. Thus, it cannot be said that Appellant has suffered an “injustice.” Appellant argues that she “was never notified by EMP that HPD would waive its occupancy requirements.” See Appellant’s Brief at 18. This argument is irrelevant to the issue of standing because it solely concerns the propriety of HPD’s decision. Whether HPD’s decision was proper is secondary, indeed, irrelevant, to the threshold issue of whether she has standing to challenge that decision. Likewise, Appellant’s argument that standing should be conferred to avoid insulating cooperative board from judicial scrutiny fails. See Appellant’s Brief, Point III. Appellant argues that if she did not commence this proceeding “no judicial scrutiny of [HPD’s] determination would be available.” Id., p.21. This is 13 sheer speculation. Any individual eligible for the Apartment has standing to challenge HPD’s decision regarding the Apartment. Appellant’s attempt to rely on the holdings of Borysewski v. Brydges, 37 N.Y.2d 361, 372 N.Y.S.2d 623 (1975) and Matter of Bradford Cent. School Dist. v. Ambach, 56 N.Y.2d 158, 451 N.Y.S.2d 654 (1982) is similarly misplaced. These decisions are inapplicable because they addressed claims for radically different relief arising under radically different circumstances that broadly impacted the public interest. Far-reaching issues that affect the public interest like taxpayer standing to challenge the constitutionality of legislation, as was at issue in Boryszewski, and whether a school district, as a public employer, may challenge a determination that affects public education, as was at issue in Ambach, share nothing in common with Appellant’s individual claim concerning a cooperative apartment she is not even entitled to occupy. POINT III THE COURT SHOULD DISREGARD APPELLANT’S ARGUMENTS BASED ON FACTUAL ASSERTIONS THAT ARE NOT IN THE RECORD It is axiomatic that a “matter dehors the record [ ] is [ ] beyond [this Court’s] review.” QBE Ins. Corp. v. Jinx-Proof Inc., 22 N.Y.3d 1105, 1108, 983 N.Y.S.2d 465, 466 (2014); see also See Kahn v. City of New York, 37 A.D.2d 520, 521, 321 N.Y.S.2d 791, 794 (1st Dep’t 1971) aff’d, 30 N.Y.2d 690 (1972) (“It is well 14 established that [appellate] review . . . is limited to the record made before Special Term and the court is bound by the certified record on appeal.”); Mount Lucas Associates, Inc. v. MG Ref. & Mktg., Inc., 250 A.D.2d 245, 254, 682 N.Y.S.2d 14, 21 (1st Dep’t 1998) (“arguments in appellate briefs are to be based and appeals decided solely upon factual material before the court at nisi prius”); Mendoza v. Plaza Homes, LLC, 55 A.D.3d 692, 693, 865 N.Y.S.2d 342, 343 (2d Dep’t 2008) (“new facts may not be injected at the appellate level”). Based on this fundamental rule of appellate practice, the Court should not consider two purported facts set forth in Appellant’s Brief. First, Appellant argues that HPD “admits” that Appellant “should have been granted the apartment” because HPD “would have granted approval of the occupancy waiver to Ms. Echevarria.” See Appellant’s Brief at 4, 9 (citing HPD’s appeal brief to the First Department “HPD’s First Department Brief”). The purported “admission” that HPD would have permitted a transfer of the Apartment to Appellant instead of the Andermanises is not in the record and was raised for the first time in HPD’s First Department Brief. Second, Appellant asserts for the first time in her appeal to this Court that the Co-op’s approval of a “First Sale Capital Assessment,” which was not effective until January 2014, somehow demonstrates that Appellant has standing to challenge HPD’s 2012 decision regarding the Apartment. See Appellant’s Brief at 10-11. 15 The Court should disregard these arguments because they are based on material outside of the record. See QBE Ins. Corp., 22 N.Y.3d at 1108, 983 N.Y.S.2d at 466 (not considering issue based on documentary evidence “not included in the record on appeal” and thus “beyond [the Court’s] review”); Gramercy Co. v. Benenson, 223 A.D.2d 497, 498, 637 N.Y.S.2d 383, 384 (1st Dep’t 1996) (“Since this issue was not raised below, it is not properly presented for review by this Court, particularly where the claim is inappropriately raised, for the first time, in defendant’s reply brief.”). In any event, these extra-record facts do not provide a basis to disturb the April 1 Order. First, not only is HPD’s so-called “admission” that it should have granted the Apartment to Appellant nowhere in the record, it is contradicted by the facts that are in the record. The Petition alleges that the Court should order HPD to follow its rules, but nowhere does it allege that in doing so HPD should have awarded the Apartment to Appellant, or that HPD would award the Apartment to Appellant if the Petition were granted. Likewise, in response to the Petition, HPD cross-moved to remand the Petition so that it can rescind the approval of the transfer of the Apartment and proceed in accordance with the operative rules. (R.67-68). HPD explained in REDACTED detail that the operative rules - the very rules that the Petition expressly seeks to have enforced in connection with a transfer of the Apartment - provide: in the absence of any viable candidates on the four-bedroom internal list, the public at large should have been advised of the availability of Apt through advertisements in daily newspapers, and a four- bedroom external list created from applicants for Apt. responding to the public announcement who satisfied the 6-person occupancy requirement for the four-bedroom apartment. An occupant for Apt. · would be selected from that newly created four-bedroom external list with the order of selection determined by lottery. (R. 77, ~2 1 ). HPD expressly stated that it "is prepared to rescind its approval of the transfer of Apt to Andermanis and to process the transfer of Apt m accordance with the prescribed procedure." (R.77, ~22; see also R.95 , ~3; R.98-99 (HPD stating the same in reply)). Thus, the facts in the record are that: (I) the Petition does not allege that Appellant was eligible to occupy the Apartment or that but for HPD's alleged conduct, Appellant would have been awarded the Apartment, and (2) both Appellant and HPD's position at the trial Court level was that the Petition should be granted and the proceeding remanded so that HPD can approve a transfer of the Apartment pursuant to its rules - which undisputedly would not result in Appellant occupying the Apartment. Moreover, in opposition to EMP 's appeal to the First Department, Appellant expressly argued that the lower Court correctly granted the Petition and correctly granted HPD's cross-motion to remand the case to HPD. 16 17 Thus, HPD’s self-contradictory statement made for the first time in HPD’s First Department Brief should be rejected even if this Court were to consider it. Second, Appellant’s arguments based on statements made in HPD’s First Department Brief do not change the fact that Appellant lacks standing.3 In HPD’s First Department Brief, HPD stated that its error was “exacerbated” due to EMP’s alleged failure to inform HPD that Appellant’s family was also interested in the Apartment, and that “if an occupancy waiver were to be granted, it should have been granted to Echevarria before the Andermanises.” (HPD’s First Department Brief at 12) (emphasis added). HPD’s hypothetical does not impact the conclusion that Appellant lacks standing because HPD’s position in the trial Court – the only position that is relevant on this appeal – was to rescind its approval of the Apartment to the Andermanises based on an occupancy waiver, and to award the Apartment based on an external list of eligible families. (R.77, ¶¶21, 22; see also R.95, ¶3; R.98-99). Neither Appellant’s new argument, nor HPD’s inconsequential hypothetical upon which Appellant’s argument is based, both of which are improperly raised on appeal, changes the undisputed and dispositive facts that: (1) the Petition does not allege that Appellant is eligible for the Apartment, (2) Appellant is not eligible for 3 Tellingly, HPD did not take the position – before the trial Court or the First Department – that Appellant had standing to challenge its decision to grant an occupancy waiver to the Andermanis Respondents regarding the four-bedroom Apartment. 18 the Apartment, (3) the Petition does not allege that but for HPD’s allegedly improper conduct, Appellant would have been awarded the Apartment, and (4) if the relief sought by the Appellant is granted, Appellant will not be awarded the Apartment or gain any tangible benefit in connection with the Apartment. Thus, HPD’s embellishment on its error being “exacerbated” is a red herring because the fact remains that per the allegations of the Petition, and per HPD’s position below, HPD’s alleged error needed to be corrected and, to correct it, HPD would award the Apartment based on criteria that Appellant admittedly cannot satisfy. Likewise, Appellant’s references to, and arguments based upon, EMP’s “First Sale Capital Assessment,” which did not become “effective” until January 2014” – long after the Petition was filed and the lower Court’s decision was entered – are outside the record on appeal and, therefore, should be rejected on their face. See Appellant’s Brief at 10-11. For these reasons, the Court should reject Appellant’s arguments based on factual assertions outside of the record on appeal. CONCLUSION Based on the authority and arguments above, EMP respectfully submits that the April 1 Order be affirmed in its entirety. Dated: New York, New York February 12, 2015 19 ABRAMS GARFINKEL MARGOLIS BERGSON, LLP By:-~g-~ RobertJ.Ber~ ~ Andrew W. Gefell 1430 Broadway, 17th Floor New York, New York 10018 Attorneys for Respondent- Respondent East Midtown Plaza Housing Company