1234 Broadway, LLC v. N.Y. Div. of Hous. & Cmty. Renewal

• Decision Date: 31 January 2013
• Citation: 958 N.Y.S.2d 393,2013 N.Y. Slip Op. 00553,102 A.D.3d 628
• Parties: In re 1234 BROADWAY, LLC, Petitioner–Appellant, v. The NEW YORK STATE DIVISION OF HOUSING AND COMMUNITY RENEWAL, et al., Respondents–Respondents.
• Court: New York Supreme Court — Appellate Division

102 A.D.3d 628
958 N.Y.S.2d 393
2013 N.Y. Slip Op. 00553

In re 1234 BROADWAY, LLC, Petitioner–Appellant,
v.
The NEW YORK STATE DIVISION OF HOUSING AND COMMUNITY RENEWAL, et al., Respondents–Respondents.

Supreme Court, Appellate Division, First Department, New York.

Jan. 31, 2013.

[958 N.Y.S.2d 394]

Law Office of Santo Golino, New York (Santo Golino of counsel), for appellant.

Gary R. Connor, New York (Maria I. Doti of counsel), for The New York State Division of Housing And Community Renewal, respondent.

The Price Law Firm, LLC, New York (Joshua C. Price of counsel), for Diana Djokaj, respondent.

TOM, J.P., ANDRIAS, ACOSTA, MANZANET–DANIELS, ROMÁN, JJ.

[102 A.D.3d 628]Order, Supreme Court, New York County (Anil C. Singh, J.), entered October 3, 2011, which, upon reargument, adhered to a prior order denying and dismissing a CPLR article 78 petition seeking to annul an order of respondent New York State Division of Housing and Community Renewal (DHCR), issued June 16, 2010, which denied petitioner's petitions for administrative review of two orders finding rent overcharges, unanimously affirmed, without costs.

[102 A.D.3d 629]Although the court's order purported to deny the motion to reargue, by considering the merits of petitioner building owner's argument that the court had mistakenly attributed certain payroll records to petitioner rather than to the contractor that performed apartment renovations, the court, in effect, granted reargument. Accordingly, the order is appealable ( see Premier Capital v. Damon Realty Corp., 299 A.D.2d 158, 753 N.Y.S.2d 43 [1st Dept.2002] ). Petitioner's substantive arguments on appeal are, however, without merit.

The role of a court in an article 78 proceeding is to consider whether the “determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary, capricious or an abuse of discretion” (CPLR 7803[3] ). A court must uphold an agency's exercise of discretion unless it lacks a rational basis ( Matter of Pell v. Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 N.Y.2d 222, 231, 356 N.Y.S.2d 833, 313 N.E.2d 321 [1974] ).

DHCR acted within its discretion, and in accordance with Policy Statement 90–10, in requesting additional proof that petitioner actually paid the contractor, with whom it shared a familial identity of

[958 N.Y.S.2d 395]

interest, for the renovations allegedly performed in the two apartment units at issue ( se...