Court Upholds HPD's Addition of Landlord's Building to CONH Pilot Program Building List

Landlord brought an Article 78 court proceeding against HPD after HPD added landlord's eight-apartment building to the city's Certificates of No Harassment (CONH) Pilot Program Building List in 2022. Landlord sought removal of its building from the list and argued that HPD's decision was arbitrary and unreasonable, violated lawful procedures, and was based on an error of law. The list was created after the Pilot Program was established by Local Law 1 of 2018 and was periodically amended. The list includes buildings that HPD found, among other things, had significant distress as determined by a Building Qualification Index (BQI).

The court ruled against landlord. Since HPD's ruling involved factual evaluation within an area of that agency's expertise and was amply supported by the record, the decision must be given great weight and judicial deference. HPD's procedures for calculating a building's BQI in general, the manner in which it administered the program, and its calculation of landlord's building's BQI was rational, reasonable, and based on the applicable provisions of Local Law 1 of 2018, Local Law 140 of 2021, and 28 RCNY Section 53-03. The court did note that it would like HPD to be more transparent in its administration of the program, to provide more information and understandable explanations as to how and when a building is added to the list, and for HPD to implement a more user-friendly process.

DS Brooklyn Portfolio Owner LLC v. HPD: Index No. 158868/2022, 2023 NY Slip Op 34193(U)(Sup. Ct. NY; 12/4/23; Edwards, J)