88 Associates v. Abrams

Judgment, Supreme Court, New York County (Beverly Cohen, J.), entered on or about September 12, 1989, which granted respondent’s cross motion to dismiss, unanimously affirmed, without costs. In this article 78 proceeding to compel the respondent Attorney-General to declare effective the cooperative conversion plan, as amended by a fourth amendment, for the premises located at 11 East 88th Street, New York City, petitioners appeal from an order of the Supreme Court, New York County, granting respondent’s cross motion to dismiss. A noneviction offering plan to convert 11 East 88th Street to a residential cooperative ownership was accepted by the Attorney-General’s office on December 8, 1987. Thereafter, the offering plan was amended on three occasions and by notice dated February 9, 1989, the sponsor declared the plan effective. On February 14, 1989, the sponsor submitted a proposed fourth amendment to the plan which the Attorney-General’s office rejected in a letter dated March 15, 1989. The sponsor then instituted this proceeding to compel the Attorney-General to declare the plan effective and accept the fourth amendment claiming that the respondent’s office did not send a notice of determination within 30 days from the date of the filing. Contrary to the sponsor’s contention, the plain language of section 352-e (2) of the General Business Law mandates a 30-day notification period where a building is unoccupied. However, where a building that is to be converted to cooperative or condominium ownership is occupied for residential purposes, letters of notification shall be issued not sooner than four months and not later than six months from the date of the submission of such filing. The Attorney-General’s notification to the sponsor in this case was not limited to the 30-day rule. Since notification must be provided within the two-month window between the four-and-six-month period, the notification provided herein was, in fact, premature. This does not automatically void the notification, however. While the statutory provisions set forth in section 352-e are generally to be strictly construed (see, Matter of Gonkjur Assocs. v Abrams, 82 AD2d 683, affd 57 NY2d 853), the statute is in effect remedial and was enacted to protect the rights of subscribers to a sponsor’s offering plan through review by the Attorney-General’s office. Thus, an early response to such an offering, or as in this case, an amendment thereto, enures to the benefit of the sponsor who [414] may thereafter quickly respond and reapply for acceptance. The premature nature of the notification may not, therefore, void the notice of deficiency. Moreover, since petitioners’ challenge is in the form of mandamus, they must come forward with proof that the Attorney-General’s action was not discretionary and thus subject to judicial review. Such a showing has not been made in this instance and the Attorney-General’s actions are not, therefore, subject to judicial review. Accordingly, the order appealed from is affirmed and the article 78 petition dismissed. Concur—Sullivan, J. P., Carro, Rosenberger and Smith, JJ.