In the Matter of Alicia Echevarria, Appellant,v.Matthew M. Wambua,, et al., Respondents.BriefN.Y.October 21, 2015To be Argued by: KEVIN J. SMITH (Time Requested: 30 Minutes) APL-2014-00260 New York County Clerk's Index No. 103396/12 Qtnurt nf Appeals nf tlp~ ~tate nf New lnrk ______ _. .. ._ ____ __ 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. REPLY BRIEF FOR PETITIONER-APPELLANT Date Completed: March 9, 2015 KEVIN J. SMITH, ESQ. Attorney for Petitioner-Appellant Alicia Echevarria 30 Rockefeller Plaza, 39th Floor New York, New York 10112 Tel.: (212) 634-3052 Fax: (212) 653-8701 TABLE OF CONTENTS PRELIMINARY STATEMENT .............................................................................. 1 ARGUMENT ........................................................................................................... 2 POINT I. MS. ECHEVARRIA HAS STANDING TO COMMENCE THIS ARTICLE 78 PROCEEDING ............................................................. 2 POINT II. RESPONDENTS'-RESPONDENTS' ILLEGAL ACTIONS WOULD EVADE JUDICIAL REVIEW BUT FOR MS. ECHEVARRIA'S ARTICLE 78 PROCEEDING ....................................... 10 POINT Ill. HPD'S AMENDED RULES DO NOT ELIMINATE MS. ECHEVARRIA'S STANDING AND PERMIT THE ANDERMANISES TO REMAIN IN THE SUBJECT APARTMENT ..... 13 CONCLUSION ...................................................................................................... 15 TABLE OF AUTHORITIES Page(s) Cases Brown v. County of Erie, 60 A.D.3d 1442 (4th Dep't 2009) ................................. 5-6 EBC I, Inc. v. Goldman, Sachs & Co., 5 N. Y.3d 11 (2005) ....................................... 9 Matter of Association for a Better Long Is., Inc. v. New York State Envtl. Conservation, 23 N.Y.3d 1 (2014) ........................................................................ 5 Matter of Bradford Cent. School Dist. v. Ambach 56 N.Y.2d 158 (1982) ........................................................................................ 11 Matter of Burke v. Sugarman 35 N.Y.2d 39 (1974) ............................................................................................. 5 Matter of Clark v. Town Board of Clarkstown 28 A.D.2d 553 (2d Dep't 2006) ............................................................................ 5 Matter of Hearst Corp. v. Clyne, 50 N.Y.2d 707 (1980) ........................................... 8 Matter of Pokoik v. Silsdorf, 40 N.Y.2d 769 (1976) ......................................... 13, 14 Rocky Point Drive-In, L.P. v. Town of Brookhaven, 21 N.Y.3d 729 (2013) .......... 13 Telaro v. Telaro, 25 N.Y.2d 433 (1969) .................................................................... 6 Other Authorities Rules of the City of New York, Title 28, § 3-14(d)(7) .............................................. 9 PRELIMINARY STATEMENT Petitioner-Appellant Alicia Echevarria ("Ms. Echevarria") submits this reply brief in further support of her appeal to this Court and in response to the briefs of Respondents-Respondents East Midtown Plaza Housing Company ("EMP"), Mark and Sandra Andermanis ("Andermanises") and Matthew M. Wambua, as Commissioner of the City of New York Department of Housing Preservation and Development ("HPD"). EMP's and the Andermanises' arguments that Ms. Echevarria lacks standing to bring this Article 78 proceeding are without merit. As demonstrated in her Opening Brief and herein, contrary to EMP's and the Andermanises' arguments, Ms. Echevarria was eligible for the four-bedroom apartment that is the subject of this proceeding (hereinafter, "the subject apartment") and, as a result, Ms. Echevarria demonstrated she has suffered an injury and has a stake in the proceeding. Ms. Echevarria, therefore, has standing to bring this proceeding. Respondent-Respondent HPD- the very agency that made the irrational, arbitrary and capricious decision- supports Ms. Echevarria's contention that she has standing and her appeal to this Court. Accordingly, the April 1 Order should be reversed. POINT I MS. ECHEVARRIA HAS STANDING TO COMMENCE THIS ARTICLE 78 PROCEEDING EMP and the Andermanises argue that Ms. Echevarria lacked standing to bring this Article 78 proceeding because, among other things, she did not suffer an "injury in fact" and has no actual stake in the outcome of the litigation. (Andermanis Opp. 11-12;1 EMP Opp. 6-8.2) In particular, they contend that Ms. Echevarria was not and could not be eligible for the subject apartment because no evidence was submitted to suggest that EMP or HPD considered a three-bedroom apartment waiting list (as opposed to creating a four-bedroom apartment waiting list) that Ms. Echevarria was on. (Andermanis Opp. 16; EMP Opp. 5, 8-9.) That argument, however, is contradicted by the facts in the Record. Ms. Echevarria's and HPD's papers below alleged facts that HPD used the three-bedroom apartment waiting list to determine eligibility for the subject apartment. For example, the Petition alleged that Ms. Echevarria was damaged because Ms. Echevarria's place on the three-bedroom apartment internal transfer list was manipulated by HPD, EMP and the Andermanises, so that the 2 "Andermanis Opp." refers to the Brief of Respondents-Respondents Mark and Sandra Andermanis, dated February 12, 2015. "EMP Opp." refers to the Brief of Respondent-Respondent East Midtown Plaza Housing Company, dated February 12, 2015. -2- Andermanises could jump ahead of Ms. Echevarria to obtain the subject apartment. (R. 27-31, 76.) In addition, HPD has admitted that it used the three-bedroom apartment waiting list, not a four-bedroom apartment waiting list, to determine who was awarded the subject apartment. (See, e.g., R. 76; HPD First Dep't Brief 5- 6;3 HPD Brief 17-18.4) Further, and contrary to EMP's and Andermanises' arguments, Ms. Echevarria's papers contended below that, had HPD and EMP not committed the acts as alleged in the Petition, then Ms. Echevarria would not have been excluded from consideration for transfer to the subject apartment, but would have been approved for transfer to the subject apartment. (R. 112; see also R. 30-31.) Therefore, HPD's, EMP's and the Andermanises manipulation of Andermanises' placement on the three-bedroom internal transfer list precluded Ms. Echevarria from being considered by HPD for transfer to the subject apartment. (R. 27-31; see also R. 112.) Moreover, HPD admits that "[s]ince [Ms. Echevarria] had priority on the [three-bedroom apartment] internal list .... it should have been granted to [Ms. Echevarria] before the Andermanises." (HPD First Dep't Brief 12.) This admission confirms Ms. Echevarria's allegations noted above and that she was 3 4 "HPD First Dep't Brief' refers to the Brief of Respondent Wambua, dated December 2, 201, filed with the Appellate Division, First Department. "HPD Brief' refers to the Brief for City Respondents, dated February 12, 2015, filed this Court. -3- injured. This also demonstrates that Ms. Echevarria has standing to challenge HPD's and EMP's arbitrary and capricious decision. (HPD Brief 17-19.) EMP and the Andermanises also contend that Ms. Echevarria was not and could not be eligible for the subject apartment because HPD has stated that it will undertake a new process and award the subject apartment to a family with six occupants, not Ms. Echevarria. (EMP Opp. 8-11; Andermanis Opp. 11-12.) According to the Andermanises and EMP, therefore, Ms. Echevarria has no stake in the outcome. EMP's and the Andermanises' arguments are illogical, however, and stem from HPD's changed position in this litigation. Only after Ms. Echevarria commenced the instant Article 78 proceeding did HPD change its position that HPD was not permitted to waive its Rules' occupancy requirements, and it will need to award the subject apartment to a family with six occupants. (R. 76-78.) Ms. Echevarria's Petition and other papers below argued for a proper process consistent with HPD's priority rules because Ms. Echevarria was eligible for the subject apartment before the Andermanises at the time: had EMP and HPD not manipulated the three-bedroom apartment waiting list by moving the Andermanises ahead of Ms. Echevarria, Ms. Echevarria would have been awarded the subject apartment. (R. 30-31; 112.) In addition, if EMP's and the Andermanises' arguments were successful, the Andermanises would be permitted to remain illegally in the subject -4- apartment that they should never have been awarded in the first place. Yet, the Andermanises have the same family composition that EMP and Andermanises have argued make Ms. Echevarria ineligible. This continued violation of HPD's rules and regulation would certainly be an inequitable result. To support their arguments regarding Ms. Echevarria's eligibility for the subject apartment, Andermanises and EMP rely on this Court's decision in Clark v. Town Board of Clarkstown. (EMP Opp. 7-8; Andermanis Opp. 14-15.) As discussed in Ms. Echevarria's Opening Brief, that decision is inapplicable to the present circumstances. See Opening Br. 15-16. Rather, under prevailing New York Court of Appeals authority, Ms. Echevarria has demonstrated that she was eligible for the subject apartment, has been harmed and has standing to bring this Article 78 proceeding. Matter of Burke v. Sugarman, 35 N.Y.2d 39 (1974); see generally Opening Br. Further, this Court has recognized on numerous occasions that "standing rules 'should not be heavy-handed'," and courts should be "reluctant to apply these principles in an overly restrictive manner where the result would be to completely shield a particular action from judicial review." Matter of Association for a Better Long Is., Inc. v. New York State Dep't ofEnvtl. Conservation, 23 N.Y.3d 1, 7 (2014) (internal citations omitted.) The April 1 Order should, therefore, be reversed. -5- EMP's reliance on Brown v. County of Erie is also misplaced and the facts are inapplicable to the instant proceeding. 60 A.D.3d 1442 (4th Dep't 2009). In Brown, the Fourth Department held that petitioners in that case - a union that did not bid for a contract but rather argued that a non-party contractor should have been awarded the bid - failed to allege that the administrative action will have a harmful effect on it. Id, at 1443. Here, however, Ms. Echevarria sought to apply for transfer to the subject apartment, alleged damage to her as a result of HPD's, EMP's and the Andermanises' actions, and has a stake in the proceeding. (SeeR. 27-31; R. 112; see generally Opening Brief.) Further, HPD has admitted that it violated its own rules when it awarded the Andermanises the subject apartment (R. 76-78) and that Ms. Echevarria suffered harm. (HPD First Dep't Brief 12; HPD Brief 17-18.) EMP argues that Ms. Echevarria cannot and should not be permitted to use HPD's appeal briefs' admissions to support her arguments because they are not in the record before the Supreme Court. (See, e.g., EMP Opp. 13-17.) HPD's admissions, however, merely confirmed and supported what Ms. Echevarria had already effectively alleged or argued; that, she would have been approved for transfer to the subject apartment, she was injured and has standing to bring this proceeding. (R. 30-31; 67-78; 94-100); (HPD First Dep't Brief 12; HPD Brief 17- 18.) Although HPD's explicit admissions were not made prior to EMP's and -6- Andermanises' appeal to the First Department and Ms. Echevarria's appeal to this Court, Ms. Echevarria should not be precluded from using those admissions to support her arguments now. See, e.g., Telaro v. Telaro, 25 N.Y.2d 433, 439 (1969) (permitting new questions to be raised on appeal to the Court of Appeals, noting that the general rule concerning questions raised neither at the trial nor at previous stages of appeal is far less restrictive than some case language would indicate.) Indeed, Ms. Echevarria's allegations in her papers below demonstrate that HPD's, EMP's and the Andermanises' manipulation of the process slowed Ms. Echevarria's advancement on the three-bedroom apartment internal transfer list to obtain a three-bedroom apartment. (R. 18-19; 27-31) That delay caused Ms. Echevarria harm. (R. 27-31; R. 112.) That harm was further illustrated by the fact that Ms. Echevarria is now required to pay a First Sale Capital Assessment for her transfer to a three-bedroom apartment that went into effect in January 2014, over one year after the Andermanises jumped ahead of Ms. Echevarria's place in line. Andermanises' argument that Ms. Echevarria did not allege that she was entitled to the transfer to the subject apartment (Andermanis Opp. 11) is also a mischaracterization of the record. Ms. Echevarria alleged in her Petition that EMP and HPD excluded Ms. Echevarria from the apartment selection process. (R. 27- 31.) Moreover, in pleadings before the Supreme Court, Ms. Echevarria alleged that she should have been awarded the subject apartment. (R. 112.) -7- EMP and the Andermanises also contend that Ms. Echevarria's argument in her Opening Brief that the April1 Order improperly relied on the fact that she did not submit an application for the subject apartment is without merit. EMP and Andermanises misconstrue the April 1 Order. The clear language from the April 1 Order was that, because Ms. Echevarria did not submit an application for the subject apartment, she could not be eligible for it. (R. 137-138.) As pointed out here and in her Opening Brief, Ms. Echevarria could not submitted an actual application because Respondents-Respondents deprived her of that opportunity. (R. 26-31; Opening Brief 18.) Andermanises argue further in a footnote that because Ms. Echevarria recently moved to a three-bedroom apartment, the litigation is moot. (Andermanis Opp. 13, n. 3.) Andermanises' argument, however, is incorrect and the circumstances here demonstrate that the mootness doctrine does not apply. Since the rights of all the parties have not been finally determined, the matter is not moot. See, e.g., Matter of Hearst Corp. v. Clyne, 50 N.Y.2d 707, 713-715 (1980). In fact, the subject apartment remains occupied illegally by the Andermanises, in violation of HPD's rules and regulations, based on HPD's and EMP's irrational, arbitrary and capricious decision. Thus, the rights of all of the parties - including HPD, EMP and the Andermanises- still need to be determined by this Court. /d. -8- The Andermanises also dispute Ms. Echevarria's contention that the Andermanises were only awarded the subject apartment because Mark Andermanis was on EMP's Board of Directors during the relevant time period. (Andermanis Opp. 3, fn. 2.) In support, the Andermanises contend that no evidence has been presented that the Andermanises received special treatment. (!d.) However, no evidence needed to be submitted at the pleading stage in this Article 78 proceeding. On a motion to dismiss pursuant to CPLR 3211, the court "must afford the pleadings a liberal construction, take the allegations of the complaint as true and provide [the] plaintiff the benefit of every possible inference." EBC I, Inc. v. Goldman, Sachs & Co., 5 NY3d 11, 19 (2005). In any event, no facts exist that demonstrate a rational basis for why the Andermanises were awarded the subject apartment and HPD's admissions in this proceeding effectively demonstrate that Mark Andermanis received preferential treatment either from EMP or HPD. (R. 76-77, 95.) In fact, it is undisputed that Ms. Echevarria expressed interest in the subject apartment but was never notified that HPD would waive the occupancy requirements for that apartment. (R. 27-31.) When Mark Andermanis, a member of the Board of Directors of EMP, expressed interest in the subject apartment, he was notified and granted a waiver of the occupancy requirements for the subject apartment. (!d.) As a result, when Mark Andermanis was awarded the subject apartment, HPD's rules and regulations prohibiting Board members from receiving -9- preferential treatment were violated. (See Rules of the City of New York, Title 28, § 3-14(d)(7) ("No board member shall receive any preferential treatment or thing of value as a result of his or her board membership.") At the very least, there is an appearance of impropriety that cannot and should not be overlooked. POINT II RESPONDENTS'-RESPONDENTS' ILLEGAL ACTIONS WOULD EVADE JUDICIAL REVIEW BUT FOR MS. ECHEVARRIA'S ARTICLE 78 PROCEEDING The Andermanises and EMP argue that there is no risk that HPD's decision at issue on this appeal will evade judicial review because, among other things, eligible individuals for the subject apartment could have commenced a proceeding to challenge HPD's and EMP's decision. (See EMP Opp. 7-8; Andermanis Opp. 11.) In particular, EMP argues that to be eligible for the subject apartment, the occupant must be comprised of a six person family. (EMP Opp. 7- 8.) According to EMP, since Ms. Echevarria did not have six individuals in her family, she is not eligible for the subject apartment and therefore lacks standing. (/d.) That argument lacks merit. If Ms. Echevarria did not bring the instant proceeding to challenge HPD's, EMP's and the Andermanises' violation of HPD's rules and regulations- violations that are admitted by HPD- and precluded Ms. Echevarria from applying for and transferring to the subject apartment, no judicial scrutiny of that determination would be available. -10- If EMP's circular, illogical reasoning prevailed, no one at EMP would be able to challenge EMP's, HPD's and Andermanises' illegal and irrational conduct in awarding the subject apartment to the Andermanises because no shareholders met the occupancy threshold. (R. 76.) That was the very reason that EMP, on behalf of the Andermanises, sought and obtained a waiver from HPD from the occupancy rules. (R. 76.). In fact, the record demonstrates that no individuals other than Ms. Echevarria and the Andermanises sought to apply for the subject apartment. (R. 76.) As a result, unless Ms. Echevarria is found to have standing, this illegal administrative agency and cooperative board action will evade judicial review. See, e.g., Matter of Bradford Cent. School Dist. v Ambach, 56 N.Y.2d 158 (1982); Matter of Sugarman, 35 N.Y.2d at 45. Although HPD admitted that it should not have awarded the subject apartment to the Andermanises, no evidence exists that it would have sought a remand without Ms. Ech~varria commencing this Article 78 proceeding. Had Ms. Echevarria not commenced this Article 78 proceeding, EMP's, HPD's and the Andermanises' actions would have gone un-reviewed. At no time after the April 9, 2012 approval of the apartment transfer to the Andermanises and the time that Ms. Echevarria commenced this Article 78 proceeding in July 2012, did EMP, the Andermanises or HPD challenge HPD's improper and arbitrary and capricious decision. In fact, only in response to the -11- Petition did HPD cross-move to remand the matter to the agency to correct its improper decision. (R. 67-78.) To support their argument, Andermanises contend that Ms. Echevarria failed to allege or demonstrate how HPD acted in an arbitrary or capricious fashion by acting on the only request made to it. (Andermanis Opp. 11.) That is incorrect. The Petition alleged that HPD and EMP acted in violation of HPD's rules and regulations when HPD awarded Andermanises the subject apartment and EMP purposely excluded Ms. Echevarria from the process. (R. 27-31.) As alleged below, Ms. Echevarria inquired but was never told that she could obtain a waiver of HPD's occupancy rules, just as the Andermanises did. (R. 28-29.) As a result, EMP and HPD (and the Andermanises) manipulated the three-bedroom apartment waiting list to exclude Ms. Echevarria from consideration for the subject apartment. (R. 28-31.) Each of the Respondents essentially hid the ball and EMP and the Andermanises continue to try to do so by arguing that Ms. Echevarria has no standing to complain about HPD's and EMP's arbitrary and capricious decision to unlawfully award the subject apartment to the Andermanises. -12- POINT III HPD'S AMENDED RULES DO NOT ELIMINATE MS. ECHEVARRIA'S STANDING AND PERMIT THE ANDERMANISES TO REMAIN IN THE SUBJECT APARTMENT The Andermanises argue that HPD did not err in granting the subject apartment to them because HPD has recently amended its rules and regulations to permit waivers of the occupancy rules. (Andermanis Opp. 18-19.) That argument, however, goes to the merits of the dispute, not standing. Even if it were at issue on this appeal, the Andermanises' argument is incorrect. According to the Andermanises, HPD can no longer argue that it lacked the authority to grant a waiver because a case must be decided upon the law as it exists at the time of the decision and, according to the Andermanises, the rules and regulations permit waivers of the occupancy rules. (Andermanis Opp. 18-19, citing Rocky Point Drive-in, L.P. v. Town of Brookhaven, 21 N.Y.3d 729, 736 (2013); Matter of Pokoik v. Silsdorf, 40 N.Y.2d 769, 773 (1976)). The decisions cited by the Andermanises, however, do not apply to the instant scenario; those decisions are limited to land use cases. Matter of Pokoik, 40 N.Y.2d at 773. The Andermanises cite no decisional or other authority in this context to support their contention and it should be rejected. Even assuming the cited decisions apply beyond the context of land use cases, the principle that is applied - that a case must be decided upon the law -13- as it exists at the time of the decision- is an equitable one. Matter of Pokoik, 40 N.Y.2d at 773. To permit the Andermanises to remain illegally in the subject apartment when HPD admits it was an unlawful transfer and HPD, EMP and the Andermanises manipulated the three-bedroom apartment waiting list to jump ahead of Ms. Echevarria would certainly not be equitable or just. This Court should not permit it to occur. -14- CONCLUSION WHEREFORE, for all of these reasons and the reasons set forth in her Opening Brief, Ms. Echevarria respectfully requests that this Court hold that Ms. Echevarria has standing to commence this Article 78 proceeding and reverse the April 1 Order. Dated: New York, New York March 9, 2015 RESPECTFULLY SUBMITTED 30 Rockefeller Plaza, 391h Floor New York, New York 10112 Telephone: 212-634-3052 Facsimile: 212-655-1752 Attorney for Petitioner-Appellant Alicia Echevarria -15- TO: Clerk of the Court Court of Appeals of the State of New York 20 Eagle Street Albany, New York 12207 Robert Bergson, Esq. Andrew W. Gefell, Esq. Abrams Garfinkel Margolis Bergson, LLP 1430 Broadway, 17th Floor New York, New York 10018 Attorneys for Respondent-Respondent East Midtown Plaza Housing Co. Jeffrey R. Metz, Esq. Adam Leitman Bailey, PC 120 Broadway, 17th Floor New York, New York 10271 Attorneys for Respondents-Respondents Mark Andermanis and Sandra Andermanis Karen M. Griffin, Esq. Assistant Corporation Counsel City of New York Law Department 100 Church Street New York, New York 10007 Attorneys for Respondent-Respondent City of New York Department of Housing Preservation and Development -16-