Roberts v. Tishman Speyer Properties, L.P. , 13 N.Y.3d 270 ( 2009 )

OPINION OF THE COURT

Per Curiam.

In this lawsuit, nine plaintiff tenants of Peter Cooper Village and Stuyvesant Town, two adjoining Manhattan apartment complexes comprising 110 buildings and occupying roughly 80 acres between 14th and 23rd Streets along the East River (the properties or the apartment complexes) contend that defendants Tishman Speyer Properties, L.P, and PCV ST Owner LP (collectively, PCV/ST), and Metropolitan Insurance and Annuity Company and Metropolitan Tower Life Insurance Company (collectively, MetLife), the current and former owners of the properties, respectively, were not entitled to take advantage of the luxury decontrol provisions of the Rent Stabilization Law (RSL)¹ while simultaneously receiving tax incentive benefits under the City of New York’s J-51 program. We agree.

I.

In New York City, multiple dwellings may qualify for tax incentives designed to encourage rehabilitation and improvements (see Administrative Code of City of NY § 11-243 [previously § J51-2.5]). Specifically, the City’s J-51 program, authorized by Real Property Tax Law § 489, allows property owners who complete eligible projects to receive tax exemptions and/or abatements that continue for a period of years. Eligible projects include moderate and gut rehabilitations; major capital improvements (for example, asbestos abatement or boiler replacement); and conversions of lofts and other nonresidential buildings into multiple dwellings (see Administrative Code § 11-243 [b] [2], [3], [8]; 28 RCNY 5-03 [a]). Rental units in buildings receiving these exemptions and/or abatements must be registered with the State Division of Housing and Community Renewal (DHCR), and are generally subject to rent stabilization for at least as long as the J-51 benefits are in force (see 28 RCNY 5-03 [f|). The Department of Housing Preservation and Development administers the J-51 program in the City of New York.

MetLife apparently first applied for and received J-51 benefits for the properties in 1992. At the time, the apartment complexes, which MetLife built in the 1940s, had already been rent-stabilized since at least 1974.

In 1993, the Legislature enacted the Rent Regulation Reform Act (RRRA) (L 1993, ch 253), which provided for the luxury decontrol or deregulation of certain rent-stabilized apartments. The RRRA identified two circumstances in which deregulation was warranted: (1) in vacant apartments where the legal regulated rent was $2,000 per month or more; and (2) in occupied apartments where the legal regulated rent was $2,000 per month or more and the combined annual income of all occupants exceeded $250,000 per year (RSL [Administrative Code] §§ 26-504.1, 26-504.2). The RRRA carved out an exception to luxury decontrol, which stated: “this exclusion [i.e., luxury decontrol] shall not apply to housing accommodations which became or become subject to this law [i.e., the RSL] (a) by virtue of receiving tax benefits pursuant to section . . . four hundred eighty-nine of the real property tax law [J-51 benefits]” (RSL §§ 26-504.1, 26-504.2 [a]). The Legislature subsequently expanded the scope of luxury decontrol by lowering the income threshold for defining high-income households to $175,000 and allowing postvacancy improvements to count toward the $2,000 per month rent threshold (L 1997, ch 116); and permitting deregulated units to remain deregulated even if an owner subsequently charges less than the $2,000 per month threshold (L 2003, ch 82).

On January 16, 1996—prior to the 1997 amendments to the RRRA—DHCR issued an advisory opinion, which stated that participation in the J-51 program only precluded luxury decontrol “where the receipt of such benefits is the sole reason for the accommodation being subject to rent regulation” (emphasis added). On its face, the DHCR advisory opinion relies exclusively on a textual interpretation of the RRRA’s relevant provisions. Further, DHCR took the position that

“where Luxury Decontrol is applied before the ‘J-51’ tax benefit period has expired, the abatement should be reduced proportionately. That the Legislature recognized the inherent inequity of an owner’s continuing to enjoy tax benefits after decontrol is apparent from RPTL Section 489 7 (b) (1), which provides that as to . . . [‘]any multiple dwelling, building or structure which is decontrolled subsequent to the granting of such benefits, the local legislative body or other governing agency may withdraw such benefits from such dwelling.’ ”

In April 2000, DHCR proposed changes to the Rent Stabilization Code (RSC) in order to “conform regulations to statutes, particularly the RRRAs of 1993 and 1997, judicial determinations and . . . agency practice” (22 NY Reg [issue 14], Apr. 5, 2000, at 17). After public hearing and comment, DHCR adopted these changes, which became effective on December 20, 2000 (see 22 NY Reg [issue 51], Dec. 20, 2000, at 18-20 [notice of adoption]). As relevant to this appeal, DHCR amended section 2520.11 of the RSC, titled “Applicability,” to provide that

“[luxury decontrol] shall not apply to housing accommodations which became or become subject to the RSL and this Code:

“(i) solely by virtue of the receipt of tax benefits pursuant to . . . section 11-243 (formerly J51-2.5) or section 11-244 (formerly J51-5) of the Administrative Code of the city of New York, as amended” (RSC [9 NYCRR] § 2520.11 [r] [5]; [s] [2] [emphasis added]).

And in February 2004, DHCR issued (and subsequently reissued in January 2007) Fact Sheet 36, entitled “High-Rent Vacancy Decontrol and High-Rent High-income Decontrol,” which similarly specified that “[a]partments that are subject to rent regulation only because of the receipt [of J-51 benefits] do not qualify for high-rent vacancy decontrol” (emphasis added).

At some point after the RRRA was enacted, MetLife, with DHCR’s approval (see RSL § 26-504.3 [b]), began charging market-rate rents for those rental units in the properties where the conditions for high rent/high income luxury decontrol were met. In late 2006, MetLife sold the properties to PCV/ST for $5.4 billion.

Months after the sale, plaintiffs—nine individuals who reside in seven apartments in the apartment complex—sued MetLife and PCV/ST on behalf of a putative class of all current and former tenants who allegedly were, or will be, charged rents that exceed rent stabilization levels for any period during which the landlord receives real estate tax benefits under the J-51 program. Specifically, plaintiffs claimed that “in or about 2001 or 2002, and continuing through the present time,” defendants have “improperly and unlawfully charged thousands of tenants market rents, even as [defendants] have collected . . . tax benefits under the J-51 program,” amounting to “nearly $25 million”; they alleged that about one quarter of the 11,200 apartments in the apartment complex had been luxury decontrolled. Plaintiffs sought a declaration that units in the properties would remain rent-stabilized “until the last applicable J-51 tax benefits period . . . has expired [in or about 2017 or 2018],” and that defendants would “comply with all appropriate legal requirements to deregulate the units.” Plaintiffs also sought relief in the form of rental overcharges totaling $215 million and attorneys’ fees.

PCV/ST and MetLife moved to dismiss the complaint for failure to state a cause of action, arguing that the RRRA’s exception to deregulation for apartments that “became or become” subject to the RSL “by virtue of’ receiving J-51 tax benefits did not apply to the properties because they did not “become subject to” the RSL “by virtue” of the receipt of J-51 tax benefits. Rather, the apartment complex “became subject to rent stabilization in or prior to 1974,” nearly two decades before MetLife first received J-51 benefits.

In a decision dated August 16, 2007, Supreme Court dismissed the complaint, reasoning that “the clear and unambiguous language of the RSL states that the luxury decontrol ‘exclusion shall not apply to housing accommodations which became or become subject to this law (a) by virtue of receiving [J-51] tax benefits’ ” (2007 NY Slip Op 32639, *10, quoting RSL §§ 26-504.1, 26-504.2 [a]). Because the properties became subject to the RSL “18 years before applying for J-51 tax benefits,” the court concluded that “defendants did not become subject to rent stabilization by virtue of receiving” these benefits (id. at *11).

Supreme Court further noted that this interpretation, adopted by DHCR, was consistent with the luxury decontrol laws, which were intended to “restore some rationality to a system which provides the bulk of its benefits to high income tenants” (id., quoting Noto v Bedford Apts. Co., 21 AD3d 762, 765 [1st Dept 2005] [internal quotation marks omitted]); that DHCR’s interpretation of the statute, if not unreasonable or irrational, was entitled to deference; and that the Legislature’s failure to amend the RSL in response to DHCR’s interpretation when subsequently amending the luxury decontrol provisions showed that it acquiesced in this construction. Plaintiffs appealed.

The Appellate Division unanimously reversed Supreme Court’s decision and order, and reinstated the complaint. The court concluded that building owners who receive J-51 benefits forfeit their rights under the luxury decontrol provisions even if their buildings were already subject to the RSL. According to the Appellate Division, the words “by virtue of’ did not confine the exclusion from luxury deregulation to buildings that became subject to the RSL only because they received J-51 benefits; DHCR’s interpretation of this provision was not entitled to deference because a pure issue of statutory reading and analysis was involved; if the Legislature had intended the provision to mean “solely by virtue of,” as DHCR concluded, it would have used the word “solely”; its interpretation was “more consistent with the overall statutory scheme,” which made no overt distinction between properties “subject to” the RSL solely as a result of the owner’s receipt of J-51 benefits and those “subject to” the RSL before receiving such benefits; and Supreme Court’s reading “invite[d] absurd and irrational results” (Roberts v Tishman Speyer Props., L.P, 62 AD3d 71, 83 [1st Dept 2009]).

The Appellate Division subsequently granted defendants’ motion for leave to appeal, certifying the following question: “Was the order of this Court, which reversed the order of the Supreme Court, properly made?” For the reasons that follow, we answer affirmatively.

II.

PCV/ST and MetLife argue principally that the relevant exception to luxury decontrol applies only to accommodations that “became or become” subject to the RSL “by virtue of receiving tax benefits pursuant to section . . . four hundred eighty-nine of the real property Tax Law [J-51 benefits]” (RSL §§ 26-504.1, 26-504.2 [a]). And since the word “become” means to “pass from a previous state or condition” or to “take on a new role, essence, or nature” (Webster’s Third New International Dictionary of the English Language 195 [1963]), a rental unit can “become” subject to the RSL only when it passes from being unregulated to being regulated—i.e., when its status changes on account of the owner’s receipt of J-51 benefits. By contrast, a rental unit does not “become” subject to the RSL by virtue of receiving J-51 benefits if it was already subject to rent stabilization. According to PCV/ST and MetLife, if the Legislature had intended to preclude luxury deregulation for all rent-stabilized apartments receiving J-51 benefits, it would have omitted the phrases “became or become” and “by virtue of’ from the statute, and simply written that the exception did not apply to accommodations “receiving” such tax benefits. They note that the Legislature used this latter phraseology in RSL § 26-504 (c) (referring to “Dwelling units in a building or structure receiving the benefits of [J-51]”).²

III.

PCV/ST and MetLife emphasize that since 1996 DHCR—the state agency entrusted with administering rent stabilization— has interpreted the luxury decontrol provisions in the manner they advocate. This is not, however, entirely correct; DHCR’s interpretation and the one PCV/ST and MetLife now offer are different. DHCR has interpreted “by virtue of’ to mean “solely by virtue of,” while PCV/ST and MetLife rely on the “became or become” language of the statute. The two interpretations would lead to the same result in this case, but not in every case. For example, under DHCR’s interpretation, a building that first became subject to the RSL due to receipt of J-51 benefits—but is also subject to the provisions of the RSL for some other reason (see RSL § 26-504)—would be subject to luxury decontrol because it would not be stabilized “solely” because of J-51 benefits. On the other hand, under the argument made by PCV/ST and MetLife, the same building would be exempt from luxury decontrol because it “became” subject to stabilization when the first triggering event—receipt of the J-51 benefits— occurred.

It is understandable that PCV/ST and MetLife prefer not to defend DHCR’s reading, because it is contrary to the plain text of the statute. “By virtue of’ and “solely by virtue of’ simply do not mean the same thing. Nor do we owe deference to DH-CR’s reading, for this appeal does not call upon us to interpret a statute where “specialized knowledge and understanding of underlying operational practices or . . .an evaluation of factual data and inferences to be drawn therefrom” is at stake such that we should “defer to the administrative agency’s interpretation unless irrational or unreasonable” (Matter of KSLM-Columbus Apts., Inc. v New York State Div. of Hous. & Community Renewal, 5 NY3d 303, 312 [2005], quoting Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451, 459 [1980] [internal quotation marks omitted]). Rather, where

“the question is one of pure statutory reading and analysis, dependent only on accurate apprehension of legislative intent, there is little basis to rely on any special competence or expertise of the administrative agency and its interpretive regulations . . . And, of course, if the regulation runs counter to the clear wording of a statutory provision, it should not be accorded any weight” (Kurcsics, 49 NY2d at 459).

When construing a statute, we seek to discern and give effect to the Legislature’s intent (Carney v Philippone, 1 NY3d 333, 339 [2004]), and the starting point for accomplishing this is the statute’s language (Matter of DaimlerChrysler Corp. v Spitzer, 7 NY3d 653, 660 [2006]). If the language is ambiguous, we may examine the statute’s legislative history (Majewski v Broadalbin-Perth Cent School Dist, 91 NY2d 577, 583 [1998]).

Here, we conclude that defendants’ interpretation of the exception to luxury decontrol for units that “became or become” subject to rent stabilization “by virtue of receiving” J-51 benefits conflicts with the most natural reading of the statute’s language. Defendants essentially read these words as recognizing two categories of J-51-benefítted buildings—those, like the properties, that were rent-stabilized prior to receiving J-51 benefits, for which luxury decontrol became available in 1993; and those that only became rent-stabilized as a condition of receiving J-51 benefits, for which luxury decontrol is unavailable (at least during the benefit period). But there is no language anywhere in the statute delineating these two supposed categories, and we see no indication that the Legislature ever intended such a distinction—one that never occurred to anyone, so far as this record shows, until after the present lawsuit was brought. Contrary to PCV/ST’s and MetLife’s argument, there is nothing impossible, or even strained, about reading the verb “become” to refer to achieving, for a second time, a status already attained.

Even assuming that the reading given to “became or become” by PCV/ST and MetLife is a possible one, the RRRA’s legislative history better supports our interpretation of the statute. The RRRA’s sponsor stated that luxury decontrol was unavailable to building owners who “enjoy[ed] another system of general public assistance” such as J-51 benefits (NY Senate Debate on Assembly Bill A8859, July 7, 1993, at 8214). Although the dissent accuses us of “pluck[ing] a snippet” of the sponsor’s words to support our conclusion (dissenting op at 291), in response to a question posed by a colleague exploring the very issue presented here, he said that

“should the exemptions contained in section 489 end, that’s—those J.51s and 489s end, then they would be subject so that at no point do you have the [luxury] decontrol provisions applying to the buildings which have received the tax exemptions that I just mentioned” (Senate Debate at 8214).

The dissent’s attempt to selectively highlight portions of the question does not diminish the force of the sponsor’s answer, which plainly indicates that “at no point” would the luxury decontrol provisions apply to buildings which “received” tax exemptions being discussed, including J-51 benefits. Certainly it cannot be argued that the thrust of that statement indicates otherwise.

Nor will we infer, as defendants suggest, that the Legislature’s inactivity in the face of DHCR’s interpretation of the statute constitutes its acquiescence thereto. Legislative inactivity is inherently ambiguous and “ ‘affords the most dubious foundation for drawing positive inferences’ ” (Clark v Cuomo, 66 NY2d 185, 190-191 [1985], quoting United States v Price, 361 US 304, 310-311 [I960]). It is true that, where the practical construction of a statute is well known, the Legislature may be charged with knowledge of that construction and its failure to act may be deemed an acceptance (Brooklyn Union Gas Co. v New York State Human Rights Appeal Bd., 41 NY2d 84, 90 [1976]). However, at the time the Legislature most recently considered the statute, there is no indication that the specific question presented here—that DHCR’s interpretation is improper and conflicts with the plain language of the statute—had been brought to the Legislature’s attention (see Kurcsics, 49 NY2d at 459 n 4).

IV

Defendants predict dire financial consequences from our ruling, for themselves and the New York City real estate industry generally. These predictions may not come true; they depend, among other things, on issues yet to be decided, including retroactivity, class certification, the statute of limitations, and other defenses that may be applicable to particular tenants. If the statute imposes unacceptable burdens, defendants’ remedy is to seek legislative relief. Moreover, the dissent predicts that our decision will cause “years of litigation over many novel questions to deal with the fallout from today’s decision” (dissenting op at 295). That the courts and litigants may experience some additional burden, however, is no reason to eschew what we view as the only correct interpretation of the statute (cf. Matter of Gross v Perales, 72 NY2d 231, 237 [1988]).

Accordingly, the order of the Appellate Division should be affirmed, with costs, and the certified question answered in the affirmative.

1 . The RSL is codified at Administrative Code of City of NY §§ 26-501 to 26-520.

2 . PCV/ST and MetLife also suggest that if we affirm the Appellate Division’s decision and order, we should apply the statute prospectively rather than retroactively because they reasonably relied on DHCR’s unambiguous and long-standing interpretation of the RSL’s luxury decontrol provisions. Because the lower courts did not consider this issue—as defendants acknowledge—we do not consider it at this time.