Application Norman L. Peck v. New York State Division Housing and Community Renewal

Order, Supreme Court, New York County (Karla Moskowitz, J.), entered on or about March 2, 1992, which denied petitioner's
motion for attorneys' fees pursuant to CPLR Article 86, unanimously affirmed, without costs. Appeal from an order of said
court and justice, entered March 31, 1992, denying petitioner's motion to "reargue and/or renew" is deemed one to reargue,
and is unanimously dismissed as non-appealable, without costs. Preliminarily, it should be noted that CPLR Article 86 is in derogation of the common law in that it shifts to the State
the obligation for the payment of counsel fees in limited circumstances and should therefore be strictly construed. Petitioner
is not an eligible party under subdivision (ii) of CPLR 8602(b) under the theory that an individual may be an "owner of an
unincorporated business" that has no more than 100 or less employees. He made no showing that he does not have the resources
to sustain a long legal battle (McKinney's 1989 Session Laws, Governor's Memorandum, P 2436), and permitting petitioner to
recover would render the net worth test for individuals in subdivision (i) of CPLR 8602(b) a nullity. Owning a business connotes
something more than the ownership of property and the receipt of income derived from it (People ex rel. Nauss v Graves, 283
NY 383, 386). Petitioner's own papers reflect that he turned over management of the property to another, and "one who allocates
the active administration of the properties to others and himself performs only such acts as are appropriate to safeguard
his ownership, is to be distinguished from one who himself actively participates in administering the management of the properties"
(Nauss, supra, at 386). By parity of reasoning, petitioner's argument that he is a "real estate developer" is without merit.
(See, generally, Chasanoff Operating Company v State Tax Commission, 79 A.D.2d 780.) ENTERED: December 8, 1992