FILED: NEW YORK COUNTY CLERK 12/30/ :48 PM INDEX NO /2017 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 12/30/2016

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1 FILED: NEW YORK COUNTY CLERK 12/30/ :48 PM INDEX NO /2017 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 12/30/2016 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK In the Matter of the Application of LMJ Realty LLC, Petitioner, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules, -against- THE CITY OF NEW YORK, DEPARTMENT OF HOUSING PRESERVATION AND DEVELOPMENT, Respondent. X Oral Argument Requested Index No.: VERIFIED PETITION Petitioner, by its attorneys, Rosenberg & Estis, P.C., respectfully alleges: PARTIES 1. Petitioner, LMJ Realty LLC, is the owner ("Owner") of the buildings known as and located at 17 Bay 31st Street, Brooklyn, NY and 21 Bay 31st Street, Brooklyn, NY (individually, a "Building," and collectively, the "Buildings"). 2. Respondent, The City of New York, Department of Housing Preservation & Development ("HPD"), is the City agency charged with the duty and obligation of administering tax exemption benefits pursuant to Section 421-a of the Real Property Tax Law ("RPTL") to developers of new multiple dwellings throughout New York City. RESERVATION OF RIGHTS 3. Petitioner and its attorneys are continuing to gather all of the relevant facts which led to, upon information and belief, HPD's arbitrary and capricious determination to revoke Owner's 421-a tax benefits for the Buildings on an undisclosed date, without an_v notice to Petitioner whatsoever, and without a hearing or other opportunity to be heard, all in violation of RE\58896\0001 \652557v3 1 1 of 10

2 Petitioner's right to due process and HPD's established rules and procedures. As such, Petitioner is commencing this proceeding so as to avoid any issue with the statute of limitations and Petitioner intends, and hereby reserves the right, to file an amended verified petition pursuant to CPLR 3025 upon obtaining all relevant facts, together with supporting affidavits, exhibits and a memorandum of law. 4. In addition, Petitioner also reserves the right to demand discovery and a hearing if necessary. NATURE OF PROCEEDING 5. Upon information and belief, on an unknown date and without any prior notice to Petitioner, HPD made a determination pursuant to which HPD revoked Owner's RPTL 421-a tax benefits for the Buildings (the"unlawful Determination") 6. This proceeding is brought pursuant to CPLR 7803(3), seeking to annul the Unlawful Determination as arbitrary and capricious, an abuse of discretion, in violation of lawful procedure and affected by an error of law. 7. This proceeding is also brought pursuant to CPLR 7803(1), seeking to annul the Unlawful Determination due to HPD's failure to perform a duty enjoined upon it by law. 8. This proceeding is also brought pursuant to CPLR 3001 seeking an order and judgment declaring that Unlawful Determination violated Petitioner's due process rights and applicable law. 9. The Petitioner is aggrieved by the Unlawful Determination and has exhausted all administrative remedies. FACTS 10. Petitioner received and duly qualified for 421-a tax benefits for the Buildings. RE\58896\0001\652557v3 2 2 of 10

3 11. Petitioner received a preliminary certificate of eligibility pursuant to which the City of New York acting by and through HPD and the Deparhnent of Finance granted the 421-a benefits for the Buildings to Petitioner. 12. At the time the Buildings were built and Petitioner applied for the 421-a tax benefits, Mr. Leonard Molfetta, a burgeoning real estate developer, was managing Petitioner and its business concerning the Buildings. 13. Thereafter, in May 2012, Mr. Molfetta sadly and suddenly passed away. 14. It was under these tragic and sudden circumstances that his wife, Lynn Molfetta, who was inexperienced in real estate, became inundated with the responsibility of managing Mr. Molfetta's real estate business, which included Petitioner and the Buildings, and continues to manage same to this day. 15. Each Building contains three apartment rental units. 16. The rental units in the Buildings are currently registered with the State of New York Division of Housing and Community Renewal ("DHCR"). 17. Upon information and belief, as a part of amulti-agency initiative, DHCR, HPD and the AG (the "Tri-Agency Initiative") identified approximately 285 buildings that the Tri- Agency Initiative deemed not in compliance with the 421-a program and selectively targeted for enforcement based upon discriminatory and/or political reasons. 18. Upon information and belief, the Tri-Agency Initiative thereafter issued an August 25, 2015 letter (the "Tri-Agency Letter"), which was intended to give the property owners of the targeted buildings notice that they were not in compliance with the 421-a program and an opportunity to cure by entering into a "Compliance Program." RE\58896\0001 \ v3 3 3 of 10

4 19. Upon information and belief, the Tri-Agency Letter stated that that property owners had a "one-tune, non-negotiable opportunity to cure...and that [i]f you wish to avail yourself of this opportunity, you must take action to correct your filings with NYAG, HPD and DHCR (the"compliance Program")" (emphasis in original). 20. Upon information and belief, the Tri-Agency Letter contained specific instructions how to enter the Compliance Program and what steps needed to be taken to fully comply with the 421-a program. 21. Upon information and belief, Petitioner's Buildings were included in the 285 buildings identified by the Tri-Agency Initiative as non-compliant. 22. Upon information and belief, neither HPD, DHCR, nor the AG sent the Tri- Agency Letter to Petitioner. 23. Petitioner never received the Tri-Agency Letter and was not afforded the same opportunity to enter into the Compliance Program as the property owners of the other 283 buildings who were given notice and the opportunity to enter into the Compliance Program. Nor was Petitioner given an opportunity to be heard prior to HPD's unlawful revocation of a substantial vested property right for which the Petitioner and Buildings duly qualified. 24. Had Petitioner received the Tri-Agency Letter, Petitioner would have entered into the Compliance Program and taken all necessary steps to retain its 421-a benefits and comply with all applicable laws and requirements. 25. In early December 2016, Petitioner learned that its 421-a tax benefits had apparently been revoked. 26. Specifically, in early December 2016, Petitioner's managing agent, M.C. O'Brien, Inc. (``O'Brien"), received tax bills for the Buildings containing new charges in the amount of RE\58896\0001 \ v3 4 4 of 10

5 $196,975.14, the majority of which were listed as a "Decrease in Exemption." Copies of the foregoing tax bills for the Buildings are annexed hereto as "Exhibit A." 27. After receiving the tax bills, O'Brien notified Petitioner of the apparent revocation of Petitioner's 421-a tax benefits. 28. Prior to December 2016, Petitioner never received any notice, actual or otherwise, that HPD had threatened to revoke Petitioner's 421-a tax benefits or had made the Unlawful Determination. 29. Petitioner and, specifically, Mrs. Molfetta, were surprised to learn of the Unlawful Determination, especially since Mrs. Molfetta was not involved in initially obtaining the 421-a benefits for the Buildings. 30. Upon information and belief, in making the Unlawful Determination, HPD failed to comply with the statutory procedural and notice requirements for revocation as set forth in Title 28, Chapter 39 of the Rules of the City of New York ("Chapter 39"). 31. Pursuant to Chapter 39, HPD is required to deliver an "Initial Notice," pursuant to the notice provisions stated therein, notifying the "Taxpayer" (as defined therein) that HPD believes it has cause to suspend, reduce, terminate or revoke the 421-a tax benefit received by the Taxpayer (an "Initial Notice") 32. Specifically, Section 39-OS of Chapter 39 requires that an Initial Notice, as well as other notices to be sent pursuant to Chapter 39 including, but not limited to, a Determination Notice (defined below), be sent as follows: HPD shall deliver all Initial Notices, Pre-Hearing Notices, Hearing Notices, and Determination Notices to the Taxpayer by mail to (i) the address to which DOF delivers real property tax bills for the Property that is the subject of such notice, (ii) the last address indicated in documents recorded in the RE\58896\0001\652557v3 5 5 of 10

6 office of the City Register for any Taxpayer holding fee title to or a mortgage on the Property that is the subject of such notice, and (iii) the address of the owner or agent registered for the Property that is the subject of such notice in accordance with article two of subchapter four of chapter two of title twentyseven of the Administrative Code, if any. (Emphasis added). 33. Upon receipt of an Initial Notice, the Taxpayer has the opportunity to submit comments to HPD and/or a proposed cure for the alleged cause of the threatened suspension, reduction, termination or revocation of 421-a tax benefits. 34. Upon information and belief, an Initial Notice concerning the Buildings was never sent as required by Chapter 39. Buildings. 35. Petitioner neither received nor had notice of an Initial Notice concerning the 36. Had Petitioner received or had notice of an Initial Notice, Petitioner would have promptly responded thereto and taken all necessary steps to cure and retain its 421-a benefits. 37. In addition, in the event HPD sends an Initial Notice pursuant to Chapter 39 and does not enter into a cure agreement or receives no comments thereto, Chapter 39 requires HPD to "deliver a Determination Notice to the Taxpayer by the method provided herein for delivery of notices stating that the Tax Benefit has been Revoked as of the Revocation Date set forth therein" (a "Determination Notice") 38. Thus, in the event HPD received no comments from Petitioner after sending an Initial Notice concerning the Buildings, HPD was required to send Petitioner a Determination Notice pursuant to Section 39-OS of Chapter Upon information and belief, a Determination Notice concerning the Buildings was never sent as required by Chapter 39. RE\58896\0001 \652557v3 6 6 of 10

7 40. Petitioner neither received nor had notice of a Detei-~nination Notice concerning the Buildings in violation of HPD's rules and procedures. 41. Had Petitioner received or had notice of a Determination Notice, Petitioner would have promptly responded thereto and taken all necessary steps to cure and retain its 421-a benefits including, without limitation, timely coininencing legal proceedings seeking to annul such determination. 42. For avoidance of doubt, prior to December 2016, Petitioner had no notice or correspondence from HPD whatsoever concerning revocation of Petitioner's 421-a benefits with regard to the Buildings. 43. Upon information and belief, on an unknown date, HPD made the Unlawful Determination. 44. Petitioner was denied notice and was denied an opportunity to be heard prior to HPD's Unlawful Determination. AS AND FOR A FIRST CAUSE OF ACTION (CPLR Article 78) 45. Petitioner repeats all statements. 46. Upon information and belief, with regard to the Buildings, neither an Initial Notice, a Determination Notice, nor any other notice required by Chapter 39 was sent by HPD to Petitioner. 47. Petitioner neither received nor had notice of an Initial Notice, a Determination Notice, nor any other notice or correspondence from HPD concerning the Buildings prior to the Unlawful Determination. 48. Petitioner never received an opportunity to be heard prior to HPD's Unlawful Determination. RE\58896\0001 \652557v3 7 7 of 10

8 49. HPD's Unlawful Determination is arbitrary and capricious, an abuse of discretion, in violation of lawful procedure and affected by an error of law. 50. By reason of HPD's failure to comply with the requirements of Chapter 39, HPD failed to perform a duty enjoined upon it by law. 51. HPD's failures to: (1) allow Petitioner the opportunity to enter into the Compliance Program; (2) notify Petitioner prior to the Unlawful Determination; (3) allow Petitioner an opportunity to cure; and/or (4) hold a hearing or allow Petitioner an opportunity to be heard, violated Petitioner's due processes rights, is discriminatory and is in violation of HPD's established rules and procedures. 52. HPD's treahnent of Petitioner was disparate to other property owners who received the Tri-Agency Letter, notice of any prior or impending HPD determination(s), and/or an opportunity to cure. Petitioner did not receive notice of the Unlawful Determination, the opportunity to enter into the Compliance Program, and/or the opportunity to be heard or cure the alleged cause for revocation. Having given other property owners the opportunity to cure, HPD was required to give Petitioner the same opportunity to cure, and HPD failed to do so in violation of law. 53. By deviating from HPD's established rules and procedures including, without limitation, Chapter 39, HPD effectively created new rules and procedures thereby circumventing the rule making procedures set forth in the City Administrative Procedure Act (CAPA). 54. By reason of the foregoing, Petitioner is entitled to an order and judgment: (1) granting the Article 78 petition; (2) annulling HPD's Unlawful Determination; (3) directing HPD to retroactively and prospectively reinstate Petitioner's 421-a tax benefits for the Buildings; and (4) granting such other and further relief to Petitioner that this Court deems just and proper. RE~58896\0001 \652557v3 8 8 of 10

9 AS AND FOR A SECOND CAUSE OF ACTION (Declaratory Judgment) 55. Petitioner repeats all statements. 56. An actual justiciable controversy exists between Petitioner and HPD concerning Petitioner's entitlement to retain the 421-a tax benefits. 57. By reason of the foregoing, Petitioner is entitled to an order and judgment declaring (1) that Petitioner is entitled to the 421-a benefits for which it duly qualified; (2) that HPD's Unlawful Determination is hereby rescinded, declared null and void and of no further force or effect; and (3) granting such other and further relief to Petitioner that this Court deems just and proper. Judgment WHEREFORE, Petitioner respectfully requests that the Court issue an Order and (a) (b) (c) On the first cause of action, pursuant to CPLR 7803(1) and (3): (1) granting the Article 78 petition; (2) annulling HPD's Unlawful Determination; and (3) directing HPD to retroactively and prospectively reinstate Petitioner's 421-a tax benefits for the Buildings. On the second cause of action, pursuant to CPLR 3001, declaring: (1) that Petitioner is entitled to the 421-a benefits for which it duly qualified; and (2) that HPD's Unlawful Determination (of unknown date) is hereby rescinded, declared null and void and of no further force or effect; and Granting such other and further relief as to Petitioner that this Court deems just and proper. Dated: New York, New York December 30, 2016 Yours, etc., ROSENBERG & ESTIS, P.C. LMJRealty LLC 733 Third Avenue New York, New York l 0017 (212) RE~58896\0001 \652557v3 9 9 of 10

10 STATE OF NEW YORK ) ss.: COUNTY OF NEW YORK ) LIMITED LIABILITY COMPANY VERIFICATION LYNN MOLFETTA, being duly sworn, deposes and says: 1. I am President of Petitioner, a New York Limited Liability Company. 2. I have read the petition and know the content thereof; and the same is true to my own knowledge, except as to the matters therein stated to be alleged upon information and belief, and as to those matters, I believe them to be true. The source of my information and belief is the books and records of Petitioner. 3. This Verification is made by deponent because Petitioner is a limited liability company and I am President thereof. l~1' LYNN MOLFETT Sworn to before me this ^~ day of December, 2016 NO AR PUBLIC GREGORY ALAN BYRNE3 Notary Public, State of New York No. 01 BY Qualified in Suffolk County Commission Expires 09/09/2017 RE\58896\0001 \652557v3 10 of 10