Academy Street Associates v. Spitzer

Order, Supreme Court, New York County (Walter B. Tolub, J.), entered January 6, 2007, which, upon reargument, adhered to a prior order denying petitioners’ application to compel the issuance of a confirmatory letter, affirmed, without costs. Petitioners are the sponsors of Academy Twins Condominium Association, for which the original offering plan was filed in 1987. After the 12th amendment to the offering plan was filed and accepted in 1991, no further amendments were filed until 2004, when, after the commencement of an investigation by the Attorney General, petitioners submitted a proposed 13th amendment to the Attorney General. Upon the Attorney General’s issuance of a deficiency letter rejecting the 13th amendment, petitioners commenced this CPLR article 78 proceeding. Petitioners now appeal from the denial of their petition. Whether the petition is analyzed as a mandamus to compel the Attorney General to accept for filing the 13th amendment to the offering plan, or a mandamus to review the Attorney General’s deficiency letter, petitioners’ claims fail in that they have neither identified a clear legal right entitling them to the relief sought nor demonstrated that respondent’s determination was arbitrary, capricious or an abuse of discretion (see CPLR 7803 [1], [3]; Matter of Scherbyn v Wayne-Finger Lakes Bd. of Coop. Educ. Servs., 77 NY2d 753, 757-758 [1991]). The propriety of the deficiency letter was established, without more, by the failure of petitioner Academy Street Associates, one of the two sponsors, to provide the required certification, under penalty of perjury, that, after review and investigation by Academy’s principals, the submission sets forth the complete terms of the offering and does not omit any material fact or contain any misstatement of material fact (see 13 NYCRR 20.2 [c] [5] [i] [A-1]; 20.4 [b]). Further, an amendment to an offering plan must disclose all material changes, including “any lawsuits, administrative proceedings or other proceedings the outcome of which may [272] materially affect the offering, the property, the rights of unit owners, sponsor’s capacity to perform all of its obligations under the plan, the condominium or the operation of the condominium” (13 NYCRR 20.5 [c] [1]). The deficiency letter states that the 13th amendment was rejected based on its failure to make adequate disclosure of, among other things, the identity and background of certain principals of the sponsors, prior litigation involving the sponsors, a prior investigation under the Martin Act, and prior sales practices in which the sponsors engaged in sales activity without updating the existing offering plan or providing a purchase agreement to prospective purchasers. It was neither arbitrary nor capricious for respondent to conclude that these are material facts that may have significantly altered the “total mix” of information available to the investor (see State of New York v Rachmani Corp., 71 NY2d 718 [1988]). Accordingly, respondent’s rejection of the proposed 13th amendment to the offering plan was properly sustained. We recognize that this appeal could be decided based solely on Academy’s failure to provide the required certification. It is nonetheless appropriate to reach the merits of the Attorney General’s substantive objections to the statements and omissions of the proposed 13th amendment, which objections have been fully litigated in Supreme Court and on appeal, in the interest of avoiding further protracting this litigation. After all, if we did not reach the merits of those objections, the issues they present would remain in dispute between the parties. We reiterate that, insofar as reasonable minds could differ as to the need to disclose the information in question, we are required to uphold the Attorney General’s rational determination that such disclosure was required in an amendment to the offering plan submitted 13 years after the previous amendment. We have considered petitioners’ remaining arguments and find them unavailing. Concur—Tom, J.E, Saxe, Friedman and Gonzalez, JJ.