People Ex Rel. Office of Rent Administration v. Berry Estates, Inc.

58 N.Y.2d 701 (1982)

The People of the State of New York ex rel. Office of Rent Administration, Division of Housing and Community Renewal, Respondent,
v.
Berry Estates, Inc., et al., Appellants. (Action No. 1.)
Berry Estates, Inc., et al., Appellants,
v.
Victor Marrero, as Commissioner of the State of New York of Housing and Community Renewal, et al., Respondents. (Action No. 2.)

Court of Appeals of the State of New York.

Argued November 10, 1982. Decided December 2, 1982.

Donald Tirschwell for appellants.

Martin A. Shlufman and Joseph B. Goldman for respondents.

Robert Abrams, Attorney-General (Daniel M. Cohen and Peter H. Schiff of counsel), in his statutory capacity pursuant to section 71 of the Executive Law.

Chief Judge COOKE and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and MEYER concur.

MEMORANDUM.

The order of the Appellate Division should be affirmed with costs.

Insofar as appellants seek relief under subdivision (a) of section 9 of the Emergency Tenant Protection Act of 1974 (L 1974, ch 576, § 4), their claim is precluded by their failure to file an application for rent adjustment within 60 days of the local effective date of Resolution No. 4, whether that date be January 1, 1979 or June 1, 1979 (as calculated from this court's dismissal of the motion for leave to appeal in the Mack case [People ex rel. Office of Rent Admin., Div. of Housing & Community Renewal v Mack, 88 Misc. 2d 1047, affd 65 AD2d 681, mot for lv to app den 47 N.Y.2d 706, 800]). To the extent that appellants seek "unusual remedies" predicated on our decision in Mayer v City Rent Agency (46 N.Y.2d 139), the courts below found that the requisite "calculated action" on the part of the municipality designed to frustrate appellants' rights was not present in this instance. This affirmed finding cannot be overturned on appeal to this court. Nor does this case fall within the scope of Matter of Our Lady of Good Counsel R. C. Church & School v Ball (38 N.Y.2d 780, affg 45 AD2d 66, 73). Finally, we agree with the Appellate Division that section 9 of the Emergency Tenant Protection Act comports with constitutional principles of equal protection and due process.

Order affirmed, with costs, in a memorandum.