Casado v. Markus

Ciparick, J. (dissenting).

Because I believe that the New York City Rent Guidelines Board (RGB or Board) lacks authority to promulgate orders imposing dollar minimum increases solely on tenants who have been living in their apartments for six years or more and paying less than $1,000 per month in rent, I respectfully dissent.

I find it unnecessary to reach the question of whether the RGB has authority to create any distinctions whatsoever within the extant classes of accommodation, since it patently lacks power to draw the particular distinction at issue here. As the majority explains, the Board’s authority is derived from Administrative Code of the City of NY (Rent Stabilization Law of 1969) § 26-510 (b), under which it may “establish annually guidelines for rent adjustments.” Even assuming that the Board, pursuant to this delegation, can set multiple rates for each class of housing, its ability to do so is limited by well-settled principles of administrative law.

Under the two orders at issue on this appeal, a tenant who has been living in an apartment for six years or more is subject to a minimum increase, whereas a more recent tenant in an identical apartment paying identical rent is not so subject. The rationale behind these orders is apparently, as Supreme Court explained, “to attempt to equalize the rental amounts that long-term and short-term tenants pay, because the operating expenses for those apartments are the same” (27 Misc 3d 340, 346 [2010]), yet long-term tenants generally pay less than more recent tenants for the same apartments.

Of course, it is no coincidence that long-term tenants are the greatest beneficiaries of rent stabilization, or that, in the majority’s words, “tenants paying higher rents must subsidize those paying lower rents” (majority op at 334). This inequality is due, in large part, to the Rent Regulation Reform Act of 1997 (L 1997, ch 116, § 19), which amended the Rent Stabilization Law to provide that a vacancy lease can increase a unit’s rent by up to 20%, and even more where there has been no vacancy *339increase in the prior eight years or the rent is particularly low (Administrative Code of City of NY § 26-511 [c] [5-a]). The evident purpose of these changes was to bring apartments closer to market rent as they become vacated (see Governor’s Approval Mem, Bill Jacket, L 1997, ch 116, at 38-39). Critically, the Legislature did not couple the large rent increases it was authorizing for new tenants with any alteration in how rent increases were calculated for current tenants. Under this scheme, by design, there is a large rent gap between new tenants and those whose tenancies predate the amendment, and it will increase as many apartments experience repeated vacancies.

“It is a fundamental principle of administrative law that an agency cannot promulgate rules or regulations that contravene the will of the Legislature” or are “ ‘out of harmony’ with an applicable statute” (Weiss v City of New York, 95 NY2d 1, 4-5 [2000]), yet the RGB did exactly that. By creating varied rates with the intended effect of minimizing the degree to which landlord costs are disproportionately covered by higher-paying apartments, the Board sought to mitigate a rent disparity the Legislature created.

More broadly, it is axiomatic that, “[a]s an arm of the executive branch of government, an administrative agency may not, in the exercise of rule-making authority, engage in broad-based public policy determinations” (Rent Stabilization Assn. of N.Y. City v Higgins, 83 NY2d 156, 169 [1993], citing Boreali v Axelrod, 71 NY2d 1, 9 [1987]). It strikes me as a great usurpation of power for the RGB to create separate increases based on what it perceives as a structural inequity in the rent laws. The Board found it problematic that long-term tenants shoulder such a small percentage of landlord costs, and this determination, in our view, crosses “the difficult-to-define fine between administrative rule-making and legislative policy-making” (Boreali, 71 NY2d at 11).

Indeed, the RGB has conceded throughout this litigation that any distinctions in rate increases must be based on factors sufficiently connected to the housing accommodations themselves.* It seems to have accepted the reasoning of Matter of New York State Tenants & Neighbors Coalition, Inc. v Nassau County *340Rent Guidelines Bd. (53 AD3d 550, 552 [2d Dept 2008]), which relied on Boreali and Weiss in striking down a rent increase contingent on tenants’ income. We see no relevant distinction between creating varied rates of increase based on income, which the Board concedes would be ultra vires, and varied rates based on duration of tenancy.

Finally, I note that under the majority’s reasoning there is no limit to the amount that the Board can increase rents at the lowest end of the rent-stabilized spectrum for the purpose of evenly distributing maintenance costs that in many buildings are shared by long-term, newer, and market-rate tenants. To me, it is obvious that such equalization is anathema to the purpose of the Rent Stabilization Law, and therefore beyond the Board’s authority.

Accordingly, I would affirm the order of the Appellate Division.

Chief Judge Lippman and Judges Graffeo, Read and Pigott concur with Judge Smith; Judge Ciparick dissents and votes to affirm in a separate opinion in which Judge Jones concurs.

Order reversed, etc.

In Supreme Court, “the RGB concede [d] that it may not create classes of accommodations based on factors, such as the income of the tenants, that are not sufficiently connected to the housing accommodations themselves.” (27 Misc 3d at 349.) Far from repudiating this view on appeal, the Board reiter*340ated during oral argument before us that a rate distinction based on income would be inappropriate.