ANF Co. v. Division of Housing and Community Renewal

• Decision Date: 10 October 1991
• Citation: 176 A.D.2d 518,574 N.Y.S.2d 709
• Parties: In the Matter of the Application of ANF COMPANY, Petitioner-Respondent, v. DIVISION OF HOUSING AND COMMUNITY RENEWAL, Respondent-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 709

574 N.Y.S.2d 709

176 A.D.2d 518

In the Matter of the Application of ANF COMPANY, Petitioner-Respondent, v. DIVISION OF HOUSING AND COMMUNITY RENEWAL, Respondent-Appellant.

Supreme Court, Appellate Division,

First Department.

Oct. 10, 1991.

Before MURPHY, P.J., and SULLIVAN, KASSAL and SMITH, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County (Martin Evans, J.), entered October 3, 1990, granting reargument of a prior order and judgment (one paper) of the same court and justice, entered August 6, 1990, which granted the petitioner's application to annul respondent's determination denying a rent restoration to the extent of remanding the matter to respondent to determine the amount of rent to be restored and, upon reargument, adhering to the prior determination, unanimously reversed, on the law, without costs or disbursements, and the petition dismissed. The Clerk is directed to enter judgment in favor of respondent-appellant dismissing the petition. Appeal from the order of the same court and justice, entered August 6, 1990, dismissed as superseded by the appeal from the order entered October 3, 1990, without costs or disbursements.

As a result of the filing of a complaint, respondent DHCR's District Rent Administrator reduced the rent-stabilized tenant's rent "to the level in effect prior to the last rent guideline increase", effective February 1, 1985, "the first rent payment day after DHCR informed the owner/landlord of the tenant's complaint." The reduction was based on the following findings: 1) apartment door bell removed; 2) master bedroom window in need of repair; 3) north bedroom ceiling repaired in unworkmanlike manner; and 4) entire refrigerator in need of repair. The order provided that the rent could be restored upon the landlord's submission of an "Affirmation of Compliance", to be filed within 30 days and that any rent above the level provided therein could not be collected without another DHCR order restoring the rent. Although the conditions cited in the reduction order were corrected by September 16, 1986, the landlord, due to oversight, did not apply for a rent restoration order until July 18, 1988, almost two years later. The District Rent Administrator denied the application, finding, on the basis of inspections made on December 13, 1988 and February 10, 1989, that, while the door bell, bedroom window and refrigerator had been replaced, the "[m]aster bedroom ceiling was repaired in an unworkmanlike manner which displays blisters and water stains." The landlord's petition for administration review, based, inter alia, on the staleness of the inspections conducted nearly three years after the repairs had been made, was denied, the DHCR finding the tenant's consent to the rent restoration invalid and the leak in the master bedroom ceiling to be a recurring one. The DHCR ordered that there should be no restoration of rent "[u]ntil [the] underlying defect is cured."

The landlord thereafter commenced this proceeding challenging the determination, citing the tenant's consent and prior DHCR rulings allegedly holding that a recurring leak does not justify the continuance of a rent reduction. The IAS court remanded the matter to DHCR "to determine the extent to which the rent should be restored based upon the correction of 3 of the 4 conditions." The DHCR moved for reargument, urging that pursuant to the Rent Stabilization Law (Administrative Code § 26-514), as judicially construed (see, Matter of Hyde Park Gardens v. DHCR, 140 A.D.2d 351, 527 N.Y.S.2d 841, affd., 73 N.Y.2d 998, 541 N.Y.S.2d 345, 539...