Appl. of 1781 Riverside v. Nys Div. of Housing, 1

• Decision Date: 02 October 2001
• Docket Number: 4763,1
• Parties: IN RE APPLICATION OF 1781 RIVERSIDE, L.L.C.,, v. NEW YORK STATE DIVISION OF HOUSING AND COMMUNITY RENEWAL,PETER ABREU, ET AL.,4763 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: FIRST JUDICIAL DEPARTMENT
• Court: New York Supreme Court — Appellate Division

IN RE APPLICATION OF 1781 RIVERSIDE, L.L.C., PETITIONER-APPELLANT v NEW YORK STATE DIVISION OF HOUSING AND COMMUNITY RENEWAL, RESPONDENT-RESPONDENT,

-AND-

PETER ABREU, ET AL., INTERVENORS-RESPONDENTS

4763

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION: FIRST JUDICIAL DEPARTMENT

October 2, 2001

Karen Schwartz-Sidrane - for petitioner-appellant,

Dawn Ivy Schiller - for respondent-respondent.

FOR A JUDGMENT, ETC.,

Williams, J.P., Andrias, Wallach, Lerner, Marlow, JJ.

Order, Supreme Court, New York County (William McCooe, J.), entered June 1, 2000, which, inter alia, dismissed the petition brought pursuant to CPLR article 78 to annul an order of respondentNew York State Division of Housing and Community Renewal(DHCR), dated November 24, 1999, which denied petitioner's Petition for Administrative Review and affirmed an order of the Rent Administrator establishing a fair market rent for the subject apartment, unanimously affirmed, without costs.

Supreme Court properly found that the challenged DHCR determination is not arbitrary and capricious and has a rational basis in the administrative record (see, Matter of Pell v Bd. of Educ., 34 N.Y.2d 222;Greystone Mgt. Corp. v Conciliation & Appeals Bd., 94 A.D.2d 614, affd62 N.Y.2d 763).

Contrary to petitioner's arguments, DHCR properly converted the subject tenants' overcharge complaint to a Fair Market Rent Appeal (see, Matter of Jemrock Realty Co. v New York State Div. of Hous. & Community Renewal, 169 A.D.2d 679, lv denied78 N.Y.2d 852;One Three Eight Seven Assocs. v Commr. of Div. of Hous. & Community Renewal, 269 A.D.2d 296) and, in adjudicating the Fair Market Rent Appeal, DHCR properly limited examination of the subject apartment's rental history to four years prior to April 1987, the time of the tenants' initial challenge to the rent charged for the apartment (see, id.;Zafra v Pilkes, 245 A.D.2d 218).

In the Fair Market Rent proceeding, petitioner owner had the burden of submitting documentation to establish the lawfulness and correctness of the rents it wished considered as comparables (see, e.g., Parcel 242 Realty Co. v New York State Div. of Hous. & Community Renewal, 215 A.D.2d 132, lv denied86 N.Y.2d 706).Although petitioner maintains that it was not afforded an adequate opportunity to meet this burden, the record discloses to the contrary that petitioner was afforded ample opportunity to submit comparability data pursuant to the Rent Reform Act of 1997 after the...