Peck v. New York State Division of Housing & Community Renewal ( 1992 )

Order, Supreme Court, New York County (Karla Moskowitz, J.), entered on or about March 2, 1992, which denied petitioner’s motion for attorneys’ fees pursuant to CPLR article 86, unanimously affirmed, without costs. Appeal from an order of said court and Justice, entered March 31, 1992, denying petitioner’s motion to "reargue and/or renew” is deemed one to reargue, and is unanimously dismissed as nonappealable, without costs.

Preliminarily, it should be noted that CPLR article 86 is in derogation of the common law in that it shifts to the State the obligation for the payment of counsel fees in limited circumstances and should therefore be strictly construed. Petitioner is not an eligible party under paragraph (ii) of CPLR 8602 (d) under the theory that an individual may be an "owner of an unincorporated business” that has no more than 100 employees. He made no showing that he does not have the resources to sustain a long legal battle (Governor’s Mem, 1989 McKinney’s Session Laws of NY, at 2436), and permitting petitioner to recover would render the net worth test for individuals in paragraph (i) of CPLR 8602 (d) a nullity. Owning a business connotes something more than the ownership of property and the receipt of income derived from it (People ex rel. Nauss v Graves, 283 NY 383, 386). Petitioner’s own papers reflect that he turned over management of the property to another, and "[o]ne who allocates the active administration of the properties to others and himself performs only such acts as are appropriate to safeguard his ownership, is to be distinguished from one who himself actively participates in administering the management of the properties” (People ex rel. Nauss v Graves, supra, at 387). By parity of reasoning, petitioner’s argument that he is a "real estate developer” is without merit. (See generally, Matter of Chasanoff Operating Co. v State Tax Commn., 79 AD2d 780.) Concur — Murphy, P. J., Rosenberger, Kassal and Rubin, JJ.