Croes Nest Realty, LP v. New York State Div. of Hous. & Cmty. Renewal

• Decision Date: 02 February 2012
• Citation: 92 A.D.3d 402,2012 N.Y. Slip Op. 00703,938 N.Y.S.2d 42
• Parties: In re CROES NEST REALTY, LP, Petitioner–Appellant, v. NEW YORK STATE DIVISION OF HOUSING AND COMMUNITY RENEWAL, et al., Respondents–Respondents.
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 00703

92 A.D.3d 402

938 N.Y.S.2d 42

In re CROES NEST REALTY, LP, Petitioner–Appellant,

v.NEW YORK STATE DIVISION OF HOUSING AND COMMUNITY RENEWAL, et al., Respondents–Respondents.

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

Feb. 2, 2012.

Sidrane & Schwartz–Sidrane, LLP, Hewlett (Karen Schwartz–Sidrane of counsel), for appellant.

Gary R. Connor, New York (Christina S. Ossi of counsel), for New York State Division of Housing and Community Renewal, respondent.

Joseph A. Altman, P.C., Bronx (Joseph A. Altman of counsel), for Branford House Tenant Association and Dorothy Ayala, respondent.GONZALEZ, P.J., SAXE, ACOSTA, FREEDMAN, JJ.

Order, Supreme Court, Bronx County (Diane A. Lebedeff, J.), entered June 16, 2011, which denied the petition to annul respondent New York State Division of Housing and Community Renewal's (DHCR) determination, dated July 23, 2009, ordering a rent reduction, based on a finding of a reduction in services, and dismissed the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.

Petitioner owns a residential building, formerly governed by city regulations under the Mitchell–Lama program pursuant to which petitioner was required to, inter alia, provide the tenants access to a community room used for parties and other gatherings. Access to the community room became one of the required services under the Rent Stabilization Law upon the building's withdrawal from the Mitchell–Lama program and entry into rent stabilization ( see Rent Stabilization Code [9 NYCRR] § 2520.6[r] ). The rent-stabilized tenants commenced a proceeding with DHCR, based on petitioner's closing of the community room. In answering tenant's complaint, petitioner conceded that it closed the room and changed the locks. Although it cited “security reasons,” no details or other supporting facts were provided. DHCR found that petitioner had closed the room without notice, thereby decreasing services and entitling the rent-stabilized tenants to a reduction of rent. Petitioner appealed, filing a petition for administrative review (PAR), in which it maintained that the room was not closed, but rather, the locks were changed to prevent certain tenants from using the room as part of a commercial operation. DHCR denied the PAR, finding that there was no dispute that petitioner closed the community room to tenants and that petitioner's claim of improper use of the room was not timely raised and therefore outside the scope of its review.

DHCR has broad discretion in ascertaining whether a required service is not being properly provided ( see Matter of Melohn v....