In the Matter of Alicia Echevarria, Appellant,v.Matthew M. Wambua,, et al., Respondents.BriefN.Y.October 21, 2015Reproduced on Recycled Paper APL-2014-00260 To be argued by: KAREN M. GRIFFIN New York County Clerk’s Office Index No. 103396/12 State of New York Court of Appeals 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 CITY RESPONDENTS RICHARD DEARING FRANCIS F. CAPUTO KAREN M. GRIFFIN of Counsel February 12, 2015 ZACHARY W. CARTER Corporation Counsel of the City of New York Attorney for City Respondents 100 Church Street New York, New York 10007 (212) 356-0845 or -2502 kgriffin@law.nyc.gov i TABLE OF CONTENTS Page TABLE OF AUTHORITIES ....................................................................... ii PRELIMINARY STATEMENT .................................................................. 1 QUESTION PRESENTED ......................................................................... 3 STATEMENT OF THE CASE .................................................................... 3 A. The Mitchell-Lama law ...................................................... 3 B. Relevant facts ..................................................................... 8 C. Petition and EMP’s motion to dismiss for lack of standing ....................................................................... 11 D. HPD’s request to have the matter remanded so that the apartment can be distributed in accordance with its rules ................................................... 13 E. Decisions below ............................................................... 15 1. The Supreme Court’s decision ................................... 16 2. The Appellate Division’s decision .............................. 17 ARGUMENT ECHEVARRIA HAS STANDING TO BRING THIS PROCEEDING BECAUSE SHE WAS HARMED WHEN THE OCCUPANCY WAIVER WAS GRANTED OUT OF PRIORITY ORDER .................................................................................. 17 CONCLUSION......................................................................................... 23 ii TABLE OF AUTHORITIES Cases Pages Burke v. Sugarman, 35 N.Y.2d 39 (1974) .............................................................................. 21 Matter of Association for a Better Long Is., Inc. v. New York State Dept. of Envtl. Conservation, 23 N.Y.3d 1 (2014) ........................................................................... 20, 21 Matter of Murphy v. New York State Div. of Hous. & Community Renewal, 21 N.Y.3d 649 (2013) ............................................................................. 19 Matter of New York State Med. Transporters Ass’n v. Perales, 77 N.Y.2d 126 (1990) ............................................................................. 20 Matter of Schorr v. New York City Department of Housing Preserv. & Development, 10 N.Y.3d 776 (2008) ............................................................................... 4 New York State Assoc. of Nurse Anesthetists v. Novello, 2 N.Y.3d 207 (2004) ......................................................................... 17, 21 Rudder v. Pataki, 93 N.Y.2d 273 (1999) ............................................................................. 17 Society of Plastics Indus. v. County of Suffolk, 77 N.Y.2d 761 (1991) ............................................................................. 17 Rules, Statutes & Charter 28 RCNY § 3-02 .......................................................................................... 7 28 RCNY § 3-02(h)(3) .................................................................................. 5 28 RCNY § 3-02(h)(8) .............................................................................. 5, 6 28 RCNY § 3-02(i) ................................................................................ 4, 5, 6 28 RCNY § 3-02 (j) ................................................................................... 4,5 28 RCNY § 3-02(k) ................................................................................... 4,5 iii 28 RCNY § 3-02(m) .............................................................................. 5, 6, 7 28 RCNY § 3-03 .......................................................................................... 7 28 RCNY § 3-14(d)(7) .................................................................................. 7 28 RCNY § 3-16(e)(6) ......................................................................... 6, 7, 18 28 RCNY § 3-18 .......................................................................................... 7 28 RCNY § 3-18(h) ...................................................................................... 7 41 N.Y. Priv. Hous. Fin. Law § 11 (McKinney’s 2002) .................................. 3 41 N.Y. Priv. Hous. Law § 11-a (McKinney’s 2002) ...................................... 3 41 N.Y. Priv. Hous. Law § 13(13) (McKinney’s 2002) ................................... 4 41 N.Y. Priv. Hous. Law § 22 (McKinney’s 2002) ......................................... 3 41 N.Y. Priv. Hous. Law § 23 (McKinney’s 2002) ......................................... 3 41 N.Y. Priv. Hous. Fin. Law § 27 (McKinney’s 2002) .................................. 4 41 N.Y. Priv. Hous. Law § 31 (McKinney’s 2002) ......................................... 4 41 N.Y. Priv. Hous. Law § 32 (McKinney’s 2002) ..................................... 4, 8 41 N.Y. Priv. Hous. Law § 32-a (McKinney’s 2002) ...................................... 4 N.Y.C. Charter § 1802(6)(d) ......................................................................... 4 PRELIMINARY STATEMENT In this proceeding under CPLR article 78, petitioner-appellant, Alicia Echevarria, challenges the decision of the Appellate Division, First Department, dismissing her petition on standing grounds. As shown below, the First Department’s decision should be reversed, because Echevarria has standing to challenge the determination of the New York City Department of Housing Preservation and Development (HPD) to waive the minimum occupancy requirements for a four-bedroom Mitchell-Lama apartment and approve Mark and Sandra Andermanises’ application for the apartment. Here, unbeknownst to HPD when it granted the occupancy waiver, the Echevarria family was listed before the Andermanises on the internal waiting list for a three-bedroom apartment. It is undisputed that under HPD’s priority rules, no waiver of occupancy requirements could properly be offered to the Andermanises unless it had first been offered to the Echevarrias and they declined it. Echevarria’s petition contends that the waiver granted to the Andermanises must be annulled in light of the failure to follow the priority rules. She has standing to assert this claim because her contentions, if accepted, would mean that her family either would receive the waiver or would move to the top of the three-bedroom waiting list (if the one family ahead of her on the 2 three-bedroom list were to accept the occupancy waiver and occupy the four- bedroom apartment). The First Department mistakenly held that Echevarria lost standing because HPD determined during the pendency of this proceeding that the occupancy waiver granted to the Andermanises was also incorrect for the more fundamental reason that HPD lacked any authority under its then-existing rules to waive the occupancy requirements. Although HPD’s position means that no family on the three-bedroom waiting list should have been offered the occupancy waiver, and thus that Echevarria would not benefit from annulment of the waiver granted to the Andermanises, the issue is properly understood as going to the merits of Echevarria’s claim, not to her standing to assert the claim in the first instance. Indeed, that is precisely how the trial court analyzed this matter. Supreme Court held that Echevarria had standing, but, on the request of HPD, granted the petition to the extent of remanding the matter to the agency so that it could correct its conceded error in granting the occupancy waiver. Supreme Court’s disposition, rather than the Appellate Division’s dismissal for lack of standing, is the correct approach. Consequently, HPD submits this brief to support, in part, Echevarria’s standing arguments and further to set forth for this Court the relevant law and rules which HPD, as the supervising agency for City-aided Mitchell-Lama 3 housing companies, believes are relevant to this appeal. Furthermore, HPD submits this brief to set forth a complete statement of the facts, and to highlight those facts which formed the basis for HPD’s mistaken approval of the Andermanises’ application for the four-bedroom apartment. QUESTION PRESENTED Did Echeverria meet the injury in fact prong necessary for standing, where her petition contends that she should have been offered any occupancy waiver before it could properly be offered to the Andermanises? STATEMENT OF THE CASE A. The Mitchell-Lama law The Mitchell-Lama law was enacted in 1955 to address the “seriously inadequate” shortage of “safe and sanitary” housing for families of low and moderate income in New York State. 41 N.Y. Priv. Hous. Fin. Law § 11 (McKinney’s 2002). Realizing that the necessary housing could not “readily be provided by the ordinary unaided operation of private enterprise,” the law provides incentives to encourage development of moderate income housing. Id. Specifically, housing companies are provided with low-interest mortgage funding for construction and real estate tax exemptions. 41 N.Y. Priv. Hous. Fin. Law §§ 11, 11-a, 22-23 (McKinney’s 2002) (“Priv. Hous. Fin. Law”). 4 In exchange for these benefits, housing companies are subject to numerous statutory restrictions, as well as to extensive regulatory and supervisory oversight and control, including regulations concerning rent, profits, disposition, tenant selection, etc. See, e.g., 41 N.Y. Priv. Hous. Fin. Law §§ 27, 31, 32, 32-a (McKinney’s 2002). Housing companies are organized “to serve a public purpose” and are “subject to the supervision and control of the commissioner, or, if the company is organized to undertake a municipally aided project, of the supervising agency.” 41 Priv. Hous. Fin. Law § 13(13). HPD is the supervising agency responsible for administering the Mitchell-Lama program for City-aided Mitchell-Lama housing companies in New York City. See N.Y. Priv. Hous. Fin. Law § 2(15); New York City Charter § 1802(6)(d). “Thus, HPD is statutorily required to enforce the Mitchell-Lama Law and regulations regardless of any actions or acquiescence by East Midtown and the other limited-profit housing companies it supervises.” Matter of Schorr v. New York City Dept. of Hous. Preserv. & Dev., 10 N.Y.3d 776, 778 (2008). HPD’s rules governing the Mitchell-Lama program are codified at Chapter 3 of Title 28 of the Rules of the City of New York (“rules”). The primary way to become a lawful tenant of Mitchell-Lama housing is to apply to the housing company for admission to a particular development. 5 41 N.Y. Priv. Hous. Fin. Law § 31; 28 RCNY § 3-02(h),(i),(j),(k),(l). Unfortunately, due to the severe shortage of low and moderate income housing in the City, demand for Mitchell-Lama apartments far exceeds the available supply. Therefore, housing companies are required to maintain waiting lists to ensure equitable access to the apartments as they become available, based on the applicant’s position on the list. The opening and closing of all waiting lists is subject to HPD’s prior written approval. 28 RCNY § 3-02(h)(8)(ii). To open a waiting list, the housing company must present HPD with a written proposal of its contemplated publicity efforts. In order to reach members of “minority groups who would otherwise be unlikely to learn of these available housing opportunities,” the rules require the plan to include “advertisements in at least two daily newspapers of general circulation and two publications known to have high readership amongst minorities.” Id. Applications are then consecutively numbered and dated upon receipt by the housing company or numbered pursuant to order of selection by lottery, as applicable. 28 RCNY § 3-02(h)(3). HPD rules set forth minimum occupancy requirements based on the number of bedrooms in an apartment. 29 RCNY § 3-02(m). An applicant must meet the occupancy standards in order to be placed on the waiting list. Id. 6 Tenants/cooperators currently living in Mitchell-Lama developments are given first priority for an internal transfer, as long as they meet the occupancy requirements. 28 RCNY § 3-02(i)(1), (m)(1)(iii). Housing companies are therefore required to maintain separate internal transfer lists by apartment size, listed in chronological order by date of receipt of transfer request. 28 RCNY § 3-02(h)(8). Here again, the tenant/cooperator must meet the occupancy standards for the size apartment requested at the time she places her name on the list. Id. For example, the occupancy requirements for a four- bedroom apartment require a minimum of six people. 28 RCNY § 3- 02(m)(1)(v). Under the rules, housing companies are required to “maintain waiting lists in accordance with the rules and utilize such lists in the re-rental of vacated apartments or resale of shares in a mutual housing company.” 28 RCNY § 3-16(e)(6). Although HPD must approve applications for applicants from these waiting lists, the rules require that the lists be kept in the housing company’s management office and that they reflect the status of each application, i.e., who received an apartment, who declined an apartment, who withdrew, or any other circumstances, including dates the actions were taken. 28 RCNY § 3-02(h)(8)(i). 7 As apartments become available, the housing company notifies prospective tenants in the order in which they appear on the applicable waiting list. 28 RCNY § 3-02(h)(8). At that point, the housing company is required to verify that the applicant meets the eligibility requirements for Mitchell-Lama housing. See, e.g., 28 RCNY §§ 3-02, 3-03. Only if the first eligible applicant on the list declines the apartment can the apartment be offered to the next person on the list, and so on until an eligible applicant accepts the apartment. 28 RCNY §§ 3-02(i), 3-16(e)(6). To maintain the integrity of the Mitchell-Lama program, HPD, as the supervising agency, must ensure that these waiting lists are administered fairly and that only eligible individuals receive Mitchell-Lama housing. HPD rules expressly prohibit any board member from receiving preferential treatment or anything of value as a result of his or her board membership. 28 RCNY § 3-14(d)(7). HPD does not have the power to independently commence eviction proceedings against unlawful tenants. Thus, in enforcing its occupancy rules, HPD operates through the housing company. 28 RCNY § 3-18. Housing companies are required to notify HPD in writing when they have knowledge that the occupancy of an apartment conflicts with the Private Housing Financing Law or HPD’s rules. 28 RCNY § 3-18(h). HPD may then direct the housing company to commence eviction proceedings, but lacks the ability to 8 enjoin or penalize the housing company if it does not do so. The Private Housing Finance Law gives HPD the ability to seek to remove some or all of the existing directors of the board where a housing company violates its certificate of incorporation or the Mitchell-Lama statute or rules, see Priv. Hous. Fin. Law. § 32(6), but that step is of course a blunt instrument for securing compliance by the housing company in its day-to-day operations. HPD recently amended its rules to include, in relevant part, a provision that allows HPD to waive the occupancy requirements under limited circumstances. Waivers are permitted for medical reasons and “where there are no available applicants on the applicable waiting list and HPD has determined that it is in the housing company's best interests to fill a specific vacancy by offering the vacant apartment to an applicant from a waiting list for an apartment of a different size.” 28 RCNY § 3-02(m)(vii). This amendment took effect on December 25, 2014. It was not in effect when the waiver at issue in this article 78 proceeding was granted. B. Relevant facts Echevarria and the Andermanises are cooperators and shareholders of East Midtown Plaza Housing Company (“EMP”), a limited profit housing company organized under Article II of the New York State Private Housing Finance Law. Cooper Square Realty, Inc. (“Cooper Square”), is the managing 9 agent for EMP. Mark Andermanis was, at all relevant times, a member of EMP’s Board of Directors (R24). According to the petition, as of June 23, 2004, the Echevarria family became eligible to transfer to a three-bedroom apartment, and in July 2004, Echevarria placed her name on the EMP’s internal three-bedroom waiting list (R26-27). The Andermanis family became eligible for and was placed on the internal three-bedroom list in August, 2004. As such, the Echevarria family was ahead of the Andermanis family on EMP’s three-bedroom internal list and, under the rules, was eligible for a three-bedroom apartment before the Andermanis family (R30). In September 2012, after this proceeding had been commenced, Mark Andermanis checked the internal three-bedroom list and confirmed that the Vallejo family was first on the list, followed by the Echevarria family, and that the Andermanis family was third on the list (R54). In late 2011 or early 2012, EMP either distributed or posted a memorandum to cooperators stating, among other things, that a four-bedroom apartment, apartment , may be available to cooperators for internal transfer, if cooperators met the applicable HPD occupancy standards requiring a minimum of six occupants (R27, 78.2). According to the petition, after receiving the letter, Echevarria’s husband contacted EMP concerning the four- bedroom apartment, but was informed that his family did not meet the 10 occupancy standards and was not eligible for the apartment (R27). However, EMP’s property manager, Geri Roberson, stated that she planned to meet with HPD to discuss whether it would waive the occupancy requirements so that the four-bedroom apartment could potentially be transferred to cooperators with fewer than six occupants (R27). The petition asserts that EMP never advised Echevarria, her husband, or any other cooperators that HPD was willing to waive the occupancy requirements such that cooperators interested in the four-bedroom apartment could submit an application, even though they did not meet the occupancy standards (R27). Meanwhile, Mark Andermanis claims that he became aware of the availability of apartment from a posting in the lobbies of EMP buildings indicating that a four-bedroom apartment had become available (R78.2). He too contacted Geri Roberson of Cooper Square, who advised him that she would contact HPD on his behalf to inquire whether the minimum occupancy requirements for apartment could be waived (R78.2). After being informed that HPD would be willing to waive the occupancy requirement, Mark and Sandra Andermanis submitted an application to transfer to apartment (R78.3). According to HPD’s records, EMP advised HPD that the Andermanis family, who occupied a two-bedroom apartment at EMP and were on the 11 three-bedroom internal waiting list, had contacted EMP and expressed an interest in obtaining a waiver to occupy apartment . HPD was advised that the Andermanis family was the first person from the internal three-bedroom waiting list who had expressed an interest to EMP in obtaining a waiver for this apartment (R76). Thereafter, HPD waived the occupancy requirements for a four-bedroom apartment, and subsequently approved the Andermanises’ application for apartment (R77). At no time prior to approving the Andermanises’ application for apartment was HPD advised by EMP, or otherwise aware, that the Andermanis family was not the first name on EMP’s internal three-bedroom list, that a person higher on the list had expressed an interest in obtaining a waiver of the occupancy requirements, or that the waiver had not been offered to those applicants with priority on the list prior to its being offered to the Andermanises (R77). C. Petition and EMP’s motion to dismiss for lack of standing Echevarria commenced this article 78 proceeding seeking a declaration that HPD’s decision to approve the transfer of apartment to the Andermanis family was improper, in violation of lawful procedure, without rational basis, and arbitrary and capricious. The petition also seeks an order reversing HPD’s decision, ordering the Andermanis family to vacate the 12 apartment, ordering HPD to comply with the rules in determining the eligibility of EMP cooperators for internal transfer to apartment , and ordering EMP to comply with the rules and utilize these rules in the re-rental of vacated apartments (R32). After the proceeding was commenced, the parties entered into a stipulation to ensure that the Andermanises would continue to have Mitchell- Lama housing regardless of the outcome of the proceeding. Thus, the parties stipulated that the apartment the Andermanises previously occupied would not be re-leased or re-sold during the pendency of the proceeding (R107, 116-117). EMP thereafter cross-moved to dismiss the petition on the ground that Echevarria lacked standing to bring the instant proceeding, arguing that she cannot meet the injury-in-fact prong necessary for standing because her petition fails to allege that her family would be entitled to transfer to the subject apartment or that HPD’s actions prevented them from transferring to the apartment (R43-52). Since the relief sought in the petition would not benefit Echevarria directly, EMP argues that it does not serve to redress any injury-in-fact to her and, as such, she lacks standing to bring this proceeding (R52). Mark Andermanis submitted an affidavit in support of EMP’s motion. In his affidavit, Andermanis argued that because the Vallejo family is before the 13 Echevarria family on the internal three-bedroom waiting list, even had EMP used the three-bedroom internal waiting list, the Vallejo family would have gotten the apartment, not the Echevarria family (R54). Thus, according to Andermanis, there are no circumstances under which Echevarria could gain anything from this litigation (R54). D. HPD’s request to have the matter remanded so that the apartment can be distributed in accordance with its rules HPD cross-moved for an order remanding the proceeding to it so that HPD could rescind the approval of the transfer of apartment and distribute the apartment in accordance with the applicable regulations (R67 -78). In support of the requested relief, HPD stated that it had determined that the apartment had been distributed in violation of its rules in two distinct respects, and thus requested an opportunity, as the agency responsible for enforcing Mitchell-Lama’s strict guidelines, to rectify the error (R77-78, 96-100). HPD explained that it had learned facts showing that its grant of a waiver to the Andermanises violated its basic rules of waiting-list priority, though the agency had not been aware of those facts at the time that it granted the waiver. Rather, when the waiver was granted, HPD had ascertained, based on its own records and information provided by EMP, that there were no eligible candidates on EMP’s internal four-bedroom waiting list and no 14 external four-bedroom list existed (R76). EMP requested that HPD waive the occupancy requirements for the Andermanis family, who was on EMP’s internal three-bedroom list, but did not inform HPD that there were other families higher than the Andermanises on this list. They also did not inform HPD that at least one family higher on the list had also inquired about a waiver of the occupancy requirements (R77). With no candidates on the four- bedroom internal waiting list, and improperly believing that the Andermanis family had priority on the three-bedroom list, HPD approved the Andermanises’ application for the four-bedroom apartment. Id. As a result of the article 78 proceeding, HPD learned that the Echevarria family was higher on the three-bedroom waiting list than the Andermanis family, meaning that the Andermanis family had not been selected according the rules of priority governing internal waiting lists. Thus, HPD requested that the court remand the case so that it could rescind its approval of apartment and distribute the apartment in accordance with the prescribed procedure (R77-78). HPD also informed the court that it had concluded that the waiver was also mistaken for the more fundamental reason that, at the time the agency approved the Andermanises’ application, its rules did not include a provision by which the minimum occupancy requirements could be waived. Therefore, 15 HPD stated that on remand the apartment would be distributed in accordance with its rules then in existence, which required that in the absence of any eligible candidates on the four-bedroom internal waiting list, the apartment be advertised to the public and an external four-bedroom waiting list be created from the eligible applicants. An occupant for apartment would then be selected from that newly created four-bedroom external list, with the order of selection determined by lottery. See 28 RCNY § 3-02(h). E. Decisions below 1. The Supreme Court’s decision By decision and order entered on May 3, 2013, Supreme Court, New York County (Moulton, J.) granted the petition to the extent of remanding the matter to HPD. The court rejected EMP’s and the Andermanises’ claim that Echevarria lacked standing to bring the instant proceeding, finding that the preferential treatment given to the Andermanises delayed Echevarria’s eventual ascension to the top of the list (R18). Supreme Court held that, for standing purposes, “it is sufficient that the award of [apartment] was given to an applicant outside of the chronological order set forth in HPD rules and governing waiting lists” (R18). In addition, Supreme Court held that “[i]t is clear that the award of the apartment to the Andermanises violated HPD’s own rules regarding transfers.” 16 Moreover, the court held that “[a]s the agency charged with fairly allocating apartments according to those rules, it is not barred by estoppel in correcting an error” (R19). Finding that the award of apartment was in derogation of HPD’s own rules, the court held that it is neither arbitrary nor capricious for HPD to seek to correct that irregularity (R20). 2. The Appellate Division’s decision The Appellate Division, First Department reversed and dismissed the petition, finding that Echevarria did not have standing to initiate this proceeding (R138-139). The court observed that because Echevarria only had a five-person household, she did not meet the six-occupant minimum necessary to be eligible for the four-bedroom apartment at issue, and noted that indeed Echevarria had never submitted an application for the apartment (R138). In light of the fact that HPD conceded that it did not have the authority to grant occupancy waivers, the court further observed that the Echevarria family would not be eligible for the apartment on remand. Id. The court concluded that these facts meant that Echevarria could not demonstrate that she “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.” Id. Consequently, the First Department dismissed the proceeding for lack of standing. 17 By order dated October 21, 2014, this Court granted Echevarria permission to appeal. ARGUMENT ECHEVARRIA HAS STANDING TO BRING THIS PROCEEDING BECAUSE SHE WAS HARMED WHEN THE OCCUPANCY WAIVER WAS GRANTED OUT OF PRIORITY ORDER A person seeking standing must first establish that she has suffered an “injury in fact,” different from the general public. See, e.g., Rudder v. Pataki, 93 N.Y.2d 273, 280 (1999); Society of Plastics Indus. v. County of Suffolk, 77 N.Y.2d 761, 773 (1991). “Injury in fact,” requires that the plaintiff have “an actual legal stake in the matter in dispute.” New York State Assoc. of Nurse Anesthetists v. Novello, 2 N.Y.3d 207, 211-12 (2004). The injury must be more than just conjectural. A plaintiff must demonstrate that she was or will actually be harmed by the challenged administrative action or inaction. Id. at 211. Second, the injury asserted “must fall within the zone of interests or concerns sought to be promoted or protected by the statutory provision under which the agency has acted.” Id. The Appellate Division erred in finding that Echevarria lacked standing to commence the instant proceeding. Echevarria has shown that her family is higher than the Andermanises on the internal waiting list upon which HPD relied in granting to the Andermanises the waiver of occupancy requirements. 18 Because Echevarria had priority over the Andermanises on the internal three- bedroom waiting list, she was harmed when the occupancy waiver was offered to the Andermanises without first being offered to her family and the other family with priority on that list. Echevarria established that she suffered an injury in fact that is personal and distinct from the general public. It is undisputed that Echevarria had priority on the waiting list over the Andermanises (R54). As such, the rules required that the apartment be offered to, and declined by, Echevarria before it could be offered to the Andermanises. 28 RCNY §§ 3-02(i), 3-16(e)(6). HPD did not waive these priority requirements, and there is no basis in the record for HPD to do so. Accordingly, if a waiver of the minimum occupancy requirements was to be granted, it had to be offered to Echevarria before it was offered to the Andermanises. Because this was not done here, and because Echevarria was harmed as a result of HPD’s and EMP’s actions, either by not being offered the apartment or, as Supreme Court properly found, by not ascending to the top position on the three-bedroom waiting list had the family above her on the list accepted the waiver, she had the requisite standing to assert her claim (R18-19). Echevarria’s injury also falls within the zone of interests or concerns sought to be protected by the Mitchell Lama law. The fair and equitable 19 distribution of apartments from the required waiting lists is critical to maintaining the integrity of this government subsidy program. See Matter of Murphy v. New York State Div. of Hous. & Community Renewal, 21 N.Y.3d 649, 659 (2013) (“Fair assignment of subsidized housing is … a central component of the Mitchell-Lama program”). The Appellate Division erred in concluding that Echevarria forfeited her standing because HPD subsequently determined that it had been mistaken in granting an occupancy waiver at all under its then existing rules. The Appellate Division acknowledged HPD’s position that it exceeded its authority when it waived its occupancy requirements, and evidently agreed with that position. But the Appellate Division was mistaken in holding that these points bear on the question of standing; they instead bear on how to resolve the article 78 petition on its merits. As Supreme Court properly held, the above points provide a sound reason to remand the matter to the agency to give it an opportunity to correct its conceded mistake. The Appellate Division erred in conflating the question whether Echevarria was likely to obtain satisfaction as a result of further proceedings before HPD on remand with the quite separate question whether Echevarria had standing to bring her article 78 petition challenging HPD’s prior determination. 20 As Supreme Court properly held, “it is clear that the award of the apartment to the Andermanises violates HPD’s own rules regarding transfers” (R19). And, moreover, “[a]s the agency charged with fairly allocating apartments according to those rules, it is not barred by estoppel in correcting an error.” Id. (citing Matter of New York State Med. Transporters Ass’n v. Perales, 77 N.Y.2d 126, 130 (1990)). Consequently, Supreme Court properly remanded the proceeding to HPD so that HPD could direct EMP to take the appropriate steps to recover the apartment and distribute it in compliance with HPD’s rules, even if, ultimately, Echevarria may not directly benefit from the relief afforded (R19). This Court should therefore reverse the Appellate Division’s dismissal of the proceeding on the ground of standing, and remand the matter to the Appellate Division with instructions for the court to address whether Supreme Court’s order of remand should be affirmed, as we contend that it should. Because, under the particular facts of this case, Echevarria has standing to challenge HPD’s prior waiver determination under ordinary injury-in-fact and zone-of-interest principles, there is no need for this Court to resort to equitable principles as a basis for standing, as Echevarria urges the Court to do. This is not a case where the administrative action will be shielded from judicial review. See, e.g., Matter of Association for a Better Long Is., Inc. v. New York 21 State Dept. of Envtl. Conservation, 23 N.Y.3d 1, 7 (2014) (recognizing that this Court has “been reluctant to apply [standing] principles in an overly restrictive manner where the result would be to completely shield a particular action from judicial review); Burke v. Sugarman, 35 N.Y.2d 39 (1974) (same). In Better Long Island, this Court found standing where “there [was] more than an amorphous allegation of potential future injury,” and the petitioners had “asserted a concrete interest in the matter the agency is regulating, and a concrete injury from the agency’s failure to follow procedure.” 23 N.Y.3d at 7-8. The same description applies here, and it remains true even though, in HPD’s view, Echevarria will not ultimately benefit from further developments following remand of the matter to the agency. Further, we do not agree with Echevarria’s assertion of standing based on the alleged future economic injury she will suffer as a result of the delay in her ascension on the three-bedroom waiting list (Appellant’s Br. at 14). This purported injury is not established in the record and is speculative, at best. Mere speculation or assumptions lack the concreteness required for “injury in fact.” New York State Assoc. of Nurse Anesthetists, 2 N.Y.3d at 211-12. Finally, we briefly explain why the recent amendment to HPD’s rules allowing HPD to waive its occupancy requirements does not render this appeal moot, in case any party raises this argument or the Court considers it sua 22 sponte. The amendment to the rules has not rendered the previously granted occupancy waiver lawful, and even if it had, that too would go to the merits of Echevarria’s claim, not to its justiciability. As a threshold matter, it is far from clear that HPD’s new rule even would apply in determining the lawfulness of the waiver granted to the Andermanises before the rule existed. Nor is it clear that the new rule’s basic criteria for waiver of occupancy requirements can be satisfied as to apartment . But the Court need not and should not undertake to decide either of the above questions, because it is abundantly clear that the new rule does not authorize deviations from the priority order of waiting lists. This means that, under the new rule, even if it applied, the Andermanises would remain ineligible for an occupancy waiver unless, among the rule’s other requirements, everyone above them on the internal three-bedroom waiting list, including Echevarria, were to decline the waiver. See id. Thus, the amendment to the rule in no way changes the fact that the Andermanises are not entitled to the occupancy waiver that they received, and even if the amendment did change that fact, the issue should not be addressed in this appeal limited solely to the question of standing, but rather should be addressed during further proceedings on remand related to the merits. For the above stated reasons, the decision of the Appellate Division dismissing the proceeding for lack of standing should be reversed, and the 23 matter should be remanded to the Appellate Division to consider, on the merits, whether Supreme Court’s order remanding the matter to HPD should be affirmed. CONCLUSION The order below should be reversed and the matter remanded to the Appellate Division for further proceedings. Dated: New York, NY February 12, 2015 Respectfully submitted, ZACHARY W. CARTER Corporation Counsel of the City of New York Attorney for the City Respondents By: ________________________ Karen M. Griffin Assistant Corporation Counsel 100 Church Street New York, NY 10007 (212) 356-0845 or -2502 kgriffin@law.nyc.gov RICHARD DEARING FRANCIS F. CAPUTO KAREN M. GRIFFIN of Counsel