

Matter of Herman v NYC Dept. of Hous. Preserv. & Dev. (2017 NY Slip Op 00646)





Matter of Herman v NYC Dept. of Hous. Preserv. & Dev.


2017 NY Slip Op 00646


Decided on February 1, 2017


Appellate Division, Second Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on February 1, 2017
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department

JOHN M. LEVENTHAL, J.P.
L. PRISCILLA HALL
SANDRA L. SGROI
COLLEEN D. DUFFY, JJ.


2015-01433
 (Index No. 25720/11)

[*1]In the Matter of Joel Herman, appellant, 
vNYC Department of Housing Preservation & Development, etc., et al., respondents.


Tenenbaum Berger & Shivers, LLP, Brooklyn, NY (David M. Berger of counsel), for appellant.
Zachary W. Carter, Corporation Counsel, New York, NY (Fay Ng and Diana Lawless of counsel), for respondents.

DECISION & ORDER
In a proceeding pursuant to CPLR article 78 to review a determination of the New York City Department of Housing Preservation & Development dated September 26, 2011, terminating the petitioner's benefits under Section 8 of the United States Housing Act of 1937 (42 USC § 1437f[b][1]), which determination was annulled in a subsequent judgment of the Supreme Court, Kings County, entered November 7, 2012, the petitioner appeals from an order of the Supreme Court, Kings County (Edwards, J.), dated October 28, 2014, which denied his motion pursuant to CPLR 8601 for an award of attorneys' fees.
ORDERED that the order is affirmed, without costs or disbursements.
The petitioner's federal housing subsidy payments were terminated by the respondent New York City Department of Housing Preservation and Development (hereinafter HPD). The petitioner subsequently commenced this CPLR article 78 proceeding to challenge that determination, and he ultimately succeeded in having his housing subsidy retroactively restored (see Matter of Herman v New York City Dept. of Hous. Preserv. & Dev., 118 AD3d 701). He then moved pursuant to CPLR 8601 to recover attorneys' fees from HPD. The Supreme Court denied the motion.
Contrary to the petitioner's contention, HPD is a city agency, and is not liable for attorneys' fees under CPLR article 86, which authorizes the recovery of those fees under limited circumstances from the State and its agencies and officials (see CPLR 8600; 8602[g]; Hernandez v Hammons, 98 NY2d 735; Knox v New York City Dept. of Educ., 100 AD3d 486).
The petitioner's contention that HPD is precluded from denying that it is a State agency by reason of judicial estoppel or by its alleged admission of that status is without merit (see CPLR 5519[a][1]; 8602[g]; see generally Festinger v Edrich, 32 AD3d 412).
LEVENTHAL, J.P., HALL, SGROI and DUFFY, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court


