Herlihy v. New York City Loft Board , 809 N.Y.S.2d 33 ( 2006 )

Determination of respondent New York City Loft Board, dated March 18, 2004, finding that respondent Weadick is a protected loft tenant and that petitioner Horowitz’s purchase of an outgoing tenant’s improvements should be set aside, unanimously confirmed, the petition denied and the proceeding brought pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, New York County [Barbara R. Kapnick, J.], entered January 19, 2005) dismissed, without costs.

Substantial evidence, including the statement in Weadick’s collateral assignment denying that she was a member of respondent 79 Warren Associates LLC, which had purchased a portion of the building in which she was an occupant, and the explanation as to why she was referred to as a “member” in a handwritten notation on her memorandum of lease, supports the finding that she was not an owner of the building. Her lease, which did not expressly waive rights under the Real Property Law or the Rent Stabilization Law did not violate public policy (cf. Rima 106 v Alvarez, 257 AD2d 201 [1999]), and should not be construed as doing so by implication. In view of its explanations for distinguishing its previous determinations, the Loft Board did not improperly depart from its own precedents in finding that Weadick was not an owner and that it had jurisdiction over a purportedly “consummated” purchase of improvements from an outgoing tenant (cf. Matter of Charles A. Field Delivery Serv. [Roberts], 66 NY2d 516, 516-517 [1985]; Matter of 2084-2086 BPE Assoc. v State of N.Y. Div. of Hous. & Community Renewal, 15 AD3d 288 [2005], lv denied 5 NY3d 708 [2005]). There was substantial evidence to support the finding that the attorney who provided notice of the owner’s intent to purchase the outgoing improvements had authority to do so, and that the tenant’s subsequent purchase violated the regulations governing such purchases (29 RCNY 2-07 [f]). Concur—Saxe, J.P., Friedman, Catterson and Malone, JJ.