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Pirzada Astor Place, LLC v. City of New York (E.D.N.Y).1.pdfYou should read this case. Amazing that NYC thinks it can retroactively remove the 421A exemption for millions of USD for a missed filing as far back as ten years earlier.
Truly amazing.
"text": "HARRY H. KUTNER. JR.
ATTORNEY-AT-LAW
1375 FS AVENUE
SUITE 905
GAMBER CETA &.V. 1820
GAUR 7-31-1400
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
PIRZADA ASTOR PLACE, LLC,
Plaintiff,
Defendants.
X
- against -
CITY OF NEW YORK,
ADOLFO CARRION, JR., individually and in his official capacity,
KIMBERLY DARGA, individually and in her official capacity,
KAMILLA SJODIN, individually and in her official capacity,
12-22 30th AVENUE LLC,
VIEW PROPERTY MANAGEMENT, LLC, and
1220 30 AVE LLC,
defendants, respectfully alleges:
COMPLAINT
Case # CV-23-
JURISDICTION
The plaintiff, PIRZADA ASTOR PLACE, LLC, complaining of the
-X
1. That this action seeks a judgment declaring New York
State law and New York City's Code and Rules & Regulations
unconstitutional in their retroactive revocation of plaintiff's Affordable
Housing tax exemption for prior owners' failures to file three annual
statements of confirmation of eligibility for the exemption.
2. That this action arises under the laws of the United
States, particularly 42 U.S.C. §§ 1983, 1985, and 1988, and the Fifth and"
"text": "ARRY HI. KUTNER, JA,
ATTORNEY ATLAW
FORS FRANKIXANEKUK
98826
GARDEN COTT: M.Y. 13830
15301741-2500
Fourteenth Amendments of the United States Constitution.
3.
by virtue of 28 USC §§ 1331 and 1343, 2201 and 2202.
4, That this claim asserts a pendent state claim under New
That this Court has jurisdiction over these claims under
York State Constitution, Article I, Section 6.
A. Plaintiff
5.
That at all times hereinafter mentioned, plaintiff was and
still is a Limited Liability Company organized and existing under New York
law, and a citizen and an entity within the jurisdiction and entitled to the
protection of the laws of the United States of America.
B. Defendants
PARTIES
6. That at all times hereinafter mentioned and upon
information and belief, defendant, CITY OF NEW YORK (hereinafter \"CITY\")
was and still is a governmental subdivision of the State of New York.
7. That at all times hereinafter mentioned and upon
information and belief, defendant ADOLFO CARRION, JR. (hereinafter
\"Carrion\"), was and still is the Commissioner and thus the chief
Page -2-"
"text": "AHKY H. KUTNER. JR.
ATTORNEY AT LAW
139 FRANKLIN ÁVESUE
SCUT=25
GARDEN CIT. X.Y. 13480
3570741-2400
wwwwwwwwww
administrative official in charge of the New York City Department of Housing
Preservation & Development (hereinafter \"DHPD\").
8. That at all times hereinafter mentioned and upon
information and belief, defendant, KIMBERLY DARGA (hereinafter \"Darga\"),
was and still is the Deputy Commissioner and thus the deputy chief
administrative official in charge of the DHPD.
9. That at all times hereinafter mentioned and upon
information and belief, defendant, KIMBERLY SJODIN (hereinafter “Sjodin\"),
was and still is the Assistant Commissioner and thus a subordinate
administrative official in charge of the DHPD.
10. That at all times hereinafter mentioned upon information
and belief, defendants, CARRION, DARGA, and SJODIN, were presumably
acting both/either as individuals and/or officials of the City in applying its
Code and Rules & Regulations against plaintiff.
That at all times hereinafter mentioned and upon
information and belief, 12-22 30th Avenue LLC [hereinafter “12-22 (#1)\"], was
and still is a Limited Liability Company organized and existing under New
York Law, and a citizen and entity within the jurisdiction of the laws of the
11.
United States.
Page -3-"
"text": "MARRY H. KURNER, JR.
ATTORNEY-ATLAW
1325 PRANKLIK ŠVENLIC
BLYT $23
GARDEN CITE, N.Y. 1953
1741-1-400
12. That at all times hereinafter mentioned and upon
information and belief, View Property Management LLC (hereinafter “VPM\"),
was and still is a Limited Liability Company organized and existing under
New York Law, and a citizen and entity within the jurisdiction of the laws of
the United States.
13. That at all times hereinafter mentioned and upon
information and belief, 1222 30th AVE LLC (hereinafter “1222 (#2)\"], was and
still is a Limited Liability Company organized and existing under New York
Law, and a citizen and entity within the jurisdiction of the laws of the United
States.
BACKGROUND
14, That at all times hereinafter mentioned, plaintiff was and
still is the owner of a certain parcel of real estate located at and known as
12-26 30th Avenue, Astoria, New York, and designated as Block 515 Lot 31
on the New York City tax map (hereinafter referred to as \"Subject Premises\").
15.
That the Subject Premises is improved with a multi-family
residential rental apartment house containing thirty-six (36) units.
16.
That upon information and belief and on about December
18, 2007, the Subject Premises was purchased by 12-22 (#1).
Page -4-"
"text": "ARRY H. KUTNER. JK.
ATTORNEY-AT-LAW
13285HAVERY AFTRUK
SUITE 225
GARNCY CITY, N.Y. 11530
151017411400
17. That upon information and belief and in or about 2009,
12-22 (#1) applied for and received a Building permit to construct the multi-
family residential rental apartment house on the Subject Premises.
18. That upon information and belief and in or about 2009,
defendant, 12-22 (#1) applied for and received an RPTL § 421-a \"Affordable
Housing\" tax exemption on said premises from defendant, CITY.
19. That in order to maintain eligibility for the tax
exemption, the owner, then 12-22 (#1), was required to file yearly
certifications, called an \"Annual Apartment Registration\" (hereinafter \"AAR\"),
by each July of the following year.
20. That upon information and belief, said defendant,
12-22 (#1), failed to file the \"Annual Apartment Registration for the Subject
Premises for the years 2010 and 2011.
That upon information and belief, on July 20, 2011,
defendant, 12-22 (#1), sold the Subject Premises to defendant, VPM.
21.
22.
That upon information and belief, on March 26, 2015,
VPM sold the Subject Premises to defendant, 1222 (#2).
23. That upon information and belief, defendant, 1222 (#2)
failed to file the \"Annual Apartment Registration\" for the year 2019.
Page -5-"
"text": "CARRY H. KUTNER, JR.
ATTORNEY-AT-LAW
1380 FaxLIN ANSUR
ETH PET
GARMIN CITY, N.Y. 11.535
161817414-400
24. That on October 22, 2020, plaintiff signed a contract to
purchase the Subject Premises from 1222 (#2) which accorded plaintiff the
right to search the title to the Subject Premises to assure the condition
precedent of \"marketable title\" was fulfilled.
25. That based on said tax covenant and representation by
defendant, 1222 (#2), the Subject Premises was required to be conveyed to
plaintiff free and clear of all land taxes to the date of closing and with the
continued benefit of the tax exemption.
26. That plaintiff employed a title insurance company which
inter alia provided a tax search showing that the premises was subject to the
tax exemption.
27. That unknown to plaintiff, the defendant, CITY's public
tax records did not contain the information that the exemption-condition-
precedent AAR(s) had not all been filed and that three years were in default,
namely 2010, 2011, and 2019. Thus said tax default title defect was not
found nor reported to plaintiff by its title insurance company.
28. That upon information and belief, the failure to file an
AAR can lead to revocation of the exemption.
Page -6-"
"text": "ARRY H. KUTNER. JR.
ATTORNRY-AT-LAW
1395 FRANKLIN AKSUE
JULTE
BAKININ CITT. N.V. 11500
230-2400
That upon information and belief, the defendant, CITY's
Code and Rules & Regulations do not require notices of the failure to file an
AAR to be recorded with the County Clerk.
29.
30. That based on the lack of any CITY publicly filed notice-
record of the AAR defaults, on January 5, 2021, plaintiff purchased the
Subject Premises.
Bill Date
31.
32.
for taxes due on the property which were paid by plaintiff as listed:
Payment Date
June 5, 2021
That plaintiff continues to own the Subject Premises.
June 4, 2022
That on the following dates, defendant, CITY issued bills
November 20, 2021
.
November 19, 2022
July 1, 2021
December 9, 2021
33. That none, emphatically not a single one of the tax bills,
contained any notice that the many years prior 2010, 2011, and 2019 AAR(s)
had not been filed and could jeopardize the tax exemption.
June 24, 2022
December 16, 2022
34. That New York State RPTL § 421-a and defendant, CITY's
Administrative Code and Rules & Regulations pursuant thereto, do not
Page -7-"
"text": "ARRY H. KUTNER. JK.
ATTORNISK-AT-TAW
1325 PRASRLIN AVEYR
SWIZ FES
GAK CITY. N.Y530
410741-1-400
m
require a Due Process-compliant level of notice, commensurate with the
possible serious consequerices, by recording with the County Clerk.
35. That on July 27, 2022, the CITY defendants issued
a \"Notice of Revocation\" of the tax exemption for the Subject Premises.
36. That said Notice declared that plaintiff's exemption had
been \"retroactively revoked\" to January 1, 2010.
37. That said period included eleven years when plaintiff did
not own the Subject Premises.
38. That plaintiff had and still has no obligation to file the
missing AAR(s), nor pay the taxes for the covered periods, nor would be able
to do so since it has none of the information necessary to be included and
certified therein.
39, That as a result of the foregoing, the CITY defendants
demanded a fully restored, non-exempt-level, additional tax of
$3,057,920.66.
40. That the CITY defendants demanded interest and penalties
on the restored exempt amount on and after January 3, 2023.
Page -8-"
"text": "HARRY H. KUTNER, JR.
ATTORNEY AT-LAW
LISS FÜLKKAIN ACKNUN.
SUTT25
CARDKS CVIF. N.V.J1630
15-10241-1400
AS AND FOR A FIRST CLAIM OF RELIEF
(42 USC § 1983 Deprivation of Civil Rights Based on
Due Process Violations of Fifth and Fourteenth Amendments}
41. That the CITY defendants' revocation procedure fails to
provide fundamental Due Process.
42, That said failures of Due Process were:
A.
B.
L
C.
D.
retroactive revocation of a tax exemption;
financially punishing plaintiff for the failures of
others;
using a tax exemption process that mandates
annual certifications of compliance and provides
penalties including revocation of exemption for
failure to do so, without any adequate Due Process
level of actual and constructive notice to the owner,
nor by recording fundamental notices of non-filing
with the County Clerk, both of which are required
for simple non-payment of taxes, a much less
serious issue;
using a revocation procedure that fails to provide
adequate notice, within specific time periods, to be
adjudicated according to specific objective standards
and guidelines, leaving the CITY defendants to
Page -9."
"text": "ARRY H. KUTNER, JR.
ATTORNEY-AT·LAW
1375 FRASLAN AVENUE
SUITE 145
GARDEN CITY. Y.Y.
1530474-1400
E.
F.
G.
conduct it arbitrarily under vague and unspecified
standards, for an unsupportably protracted period,
lacking any criteria as to when-why revocation
should be imposed;
thereby comprising a process that is basically
completely vague and entirely discretionary;
enforcing a penalty too long beyond a Due Process
constitutionally-compliant time;
thereby leading to the imposition of a penalty that is
unconscionably harsh, oppressive, and absurd, and
violating the common sense incorporated in and
required by Due Process.
43. That the CITY defendants' said grossly dilatory non-
enforcement-prosecution of the prior owners raises many issues of at least
gross negligence if not malfeasance and/or corrupt actions-omissions in
their decade-long indifferences followed suddenly by attention to long-ago
committed minor statutory breaches not attributable to the current owner.
44. That defendants not only failed for more than one decade
to enforce the registration requirement against the prior owner 12-22 (#1),
and later three years against 1222 (#2), but did not provide plaintiff with
constructive and/or actual and immediate notice upon its searching the
Page -10-"
"text": "HARKY H. KUTNER, JR.
ATTORNEY-AT-LAW
1365 FRANKLIN AKSUE
S-xx 295
GARDEN TY.Y. 1950
1074-1400
CITY's tax records as to the alleged non-compliance, nor on three separate
occasions when plaintiff paid taxes prior to July 27, 2022, there was no
notice to plaintiff before becoming owner on January 5, 2021, nor upon
filing-recording its deed, nor in the tax bills dated June 5 and November 20,
2021, and June 4, 2022, only one month before the July 27, 2022 Notice of
Revocation.
45. That not once in the three tax bills nor after the plaintiff's
three tax payments (June 21, December 21, and June 22) did defendants
put a notice in the bills nor later contact plaintiff after its payments about
the unfiled three years.
46.
That it should be emphatically highlighted that the non-
filings were not plaintiff's fault having occurred respectively more than
eleven, ten, and two years before plaintiff even purchased the property.
47. That for a comparable situation dealing with real estate
taxes, the CITY defendants, when real estate taxes are unpaid, are required
by State law to notify the landowner actually and constructively within thirty
days of missing the deadline, and to put an emblazoned \"NOTICE\" on all
future tax bills as to the defaulted tax, and to notify the owner by certified
mail, and than to sell the tax lien with yet further actual notice to the
landowner, all to comply with Due Process, and yet this situation dealing with
Page -11-"
"text": "CARRY H. KUTNER, JR.
ATTORNEYATLAW
J02A FRANKLIN STE
SU 925
GARDEN CITAS.X. 150
5741-1463
a revocation of a tax exemption many, many times more costly than one tax
period, the State statute, RPTL § 421-a and defendant, CITY's Code and
Rules & Regulations require no similar single no less repeated notices
whatsoever with regard to the failure to file certifications of continued
entitlement for and compliance with a Rule & Regulation to file an AAR.
48. That as a result of the foregoing denials of both procedural
and substantive Due Process, by State statute, RPTL, § 421-a and defendant,
CITY's Code and Rules & Regulations, are constitutionally violative.
49. That as a result of the foregoing, plaintiff demands that
;
judgment be entered:
declaring N.Y. State RPTL § 421-a to be
unconstitutional in the Due Process failure to
require any specific notices and criteria in
adjudicating a failure to file an AAR before
revocation of an exemption is imposed; and/or
B. declaring defendant, CITY's Administrative Code and
Rules & Regulations, Title 28, Chapter 39 to be
unconstitutional as vague in the failure to specify
the defendant, CITY's obligations to diligently
enforce non-filings, and the bases, standards, and
Page -12-"
"text": "HARRY H. KUTNER, JR.
ATTORNEY-AT·LAY
1325 PRANKIAX ANKSUZ
FUZIK 25
GANDER ETAN.Y.L1830
10741-1400
wwwwwwwww
C.
D.
S
factors necessary to revoke a tax exemption, thereby
defaulting the determination to arbitrary, whimsical,
capricious, and individual biases of defendant,
CITY's employees assigned to determine whether the
circumstances permit-require a penalty, and if so,
its level, such as if exemption revocation is to be
imposed; and/or
declaring defendant, CITY's Administrative Code and
Rule & Regulations, Title 28, Chapter 39 procedures
in this case leading to revocation to be unconstitu-
tionally Due Process violative in that they were so
long delayed, stretching back over twelve years, and
for periods for which plaintiff was not liable, thereby
constituting such gross and outrageously delayed
penalties as to be Due Process-violative laches and
waiver; and
declaring defendant, CITY's process revoking
plaintiff's exemption, not due to plaintiff's conduct
but due to the conduct of prior owners, to be Due
Process violative procedurally and substantively
abhorrent and unconstitutional; and/or
Page -13-"
"text": "HARRY H. KUTNÉE, JR.
ATTORNEYATLAW
1323 FRANKLIN ANGKER
25LV 525
CHEK CTTT:. N.Y. LEND
<J40+7+1-1400
E.
50,
F.
declaring defendant, CITY's retroactive revocation of
the exemption on plaintiff and levying the
retroactively restored non-exempt tax amounts on it
despite its not being the owner at that time, to be
Due Process violative and procedurally-substantively
abhorrent; and
as a result of the foregoing, vacating and setting
aside the CITY defendants' assessment of the
restored factor back taxes in the sum of
$3,057,920.66 plus any interest and penalties or
other payments made thereon; and/or
for any such other and further declaratory and
injunctive relief fashioned to be just, equitable, and
proper to remedy defendant's unconstitutional
procedures' actions, and penalties.
AS AND FOR A SECOND CLAIM FOR RELIEF.
(42 U.S.C. §1985 - Conspiracy)
That plaintiff repeats, reiterates, and realleges each and
every allegation contained in paragraphs \"1\" through \"49\" as though more
fully set forth herein at length.
51. That City defendants conspired to deprive plaintiff of its
Page -14-"
"text": "JARRY H. KUTNER, JR.
ATTORNEY-AT-LAW
1355 FRANKLIK AXEXUZ
SUITE 983
GAMERY CITY.22.131533
514): 741-1400
Due Process constitutional rights procedurally and substantively.
AS AND FOR A THIRD CLAIM FOR RELIEF
(42 U.S.C. §1988 - attorney's fees and expenses)
52. That plaintiff repeats, reiterates, and realleges each and
every allegation contained in paragraphs \"1\" through \"51\" as though more
fully set forth herein at length.
53. That plaintiff demands that its attorney's fees, costs and
expenses of this action be awarded to it.
AS AND FOR A FOURTH CLAIM FOR RELJEF
(Monell - against CITY only)
54. That plaintiff repeats, reiterates, and realleges each and
every allegation contained in paragraphs \"1\" through \"53\" as though more
fully set forth herein at length.
55. That upon information and belief, the acts complained of in
the retroactive revocation of plaintiff's tax exemption based on lack of
adequate prior notice and lack of any standards as to the nature and extent
of the penalty to be imposed, were the result of the official policy or custom of
defendant, CITY, as evidenced by its Code and Rules & Regulations.
56. That upon information and belief, said CITY policy or
custom was a cause in fact of the constitutional violations resulting in
Page -15-"
"text": "EARRY HI. KUTNER, JR.
ATTORNEY-ATLAW
1995 FIAKNIAS ÀYASUR
SURTH $$3
Games Gaz 87331000
570741-1409
plaintiff's deprivations.
57. That upon information and belief, the constitutionally
violative provisions were enacted by defendant, CITY, in its Code and Rules &
Regulations.
58. That as a result of the foregoing, plaintiff was denied
procedural and substantive Due Process.
AS AND FOR A FIFTH CLAIM FOR RELIEF
(pendent based on N.Y. State Constitution)
59.
That plaintiff repeats, reiterates, and realleges each and
every allegation contained in paragraphs \"1\" through \"58\" as though more
fully set forth herein at length.
60. That said statute, Code, and Rules & Regulations
governing defendant, CITY's retroactive revocation of plaintiff's tax exemption
violate the New York State Constitution, Article I, Section 6.
61. That plaintiff demands that said state statute, and
CITY Code, Rules & Regulations, be declared unconstitutional.
Page -16-"
"text": "CARRY H. KUTNER. JR.
ATTORNEY-AT-LAW
1326 FRANS AVENUE
SULTE 225
GARDEN CITY: X.Y.3080
1742-1100
WHEREFORE, plaintiff demands that judgment be entered:
against the CITY defendants:
I.
A.
B.
C.
declaring N.Y. State RPTL § 421-a to be
unconstitutional in the Due Process failure to
require any specific notices and criteria before
revocation of an exemption is imposed; and/or
declaring defendant, CITY's Administrative Code and
Rules & Regulations, Title 28, Chapter 39 to be
unconstitutional as vague as to defendant, CITY's
time deadlines within which it must enforce non-
filings, and in the failure to specify the bases,
standards, and factors necessary to revoke a tax
exemption, thereby defaulting the determination to
arbitrary, whimsical, capricious, and individual
biases of defendant, CITY's employees assigned to
determine whether the circumstances permit-require
a penalty, and if so, its level such as if exemption
revocation is to be imposed; and/or
declaring defendant, CITY's Administrative Code and
Rule & Regulations, Title 28, Chapter 39 procedures
in this case leading to revocation to be unconstitu-
Page -17-"
"text": "ARRY H. KUTNER, JH.
ATTORNIM-AT-LAW
1325 FRAXIS AVENUM:
BULTE 253
Gan City, N
(510-741-1409
D.
E,
F.
tionally Due Process violative in that they were so
long delayed, stretching back over twelve years, and
for periods for which plaintiff was not liable, thereby
constituting such gross and outrageously delayed
penalties as to be Due Process-violative laches and
waiver; and
declaring defendant, CITY's process revoking
plaintiff's exemption, not due to plaintiff's conduct
but due to the conduct of prior owners, to be Due
Process violative procedurally and substantively
abhorrent and unconstitutional; and/or
declaring defendant, CITY's retroactive revocation of
the exemption on plaintiff and levying the
retroactively restored non-exempt tax amounts on it
despite its not being the owner at that time, to be
Due Process violative and procedurally-substantively
abhorrent; and
as a result of the foregoing, vacating and setting
aside the CITY defendants' assessment of the
restored factor back taxes in the sum of
$3,057,920.66 plus any interest and penalties or
Page -18-"
"text": "ARRY H. KUTNYR, JR.
ATTORNIYATLAW
1330 RASKILNIN
SOITE: 988
GARDEN CITA. N.Y. 11
15181741-3-400
PAW
MILLALLAR
II.
IV.
G.
V.
other payments made thereon; and/or
for any such other and further declaratory and
injunctive relief fashioned to be just, equitable, and
proper to remedy defendant's unconstitutional
procedures' actions, and penalties; and/or
against the individual CITY defendants:
A, for plaintiff's financial losses and litigation
III. against defendant, CITY only:
A.
expenses including attorney's fees for the
necessity of this action; and/or
based on Monell, for plaintiff's financial losses and
litigation expenses for the necessity of this action;
and/or
pursuant to 42 U.S.C. § 1988, for plaintiff's attorney's fees
and other litigation expenses; and/or
for any such other and further relief which is just,
equitable, and proper.
Dated: Garden City, New York
January 17, 2023
Harry Hd Kutter fr
HARRY [H. KUTNER, JR. (K-99497)"
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