Matter of 2084-2086 Bpe Associates v. State of New York Division of Housing and Community Renewal, 5403.

CourtNew York Supreme Court Appellate Division
Citation2005 NY Slip Op 01259,15 A.D.3d 288,790 N.Y.S.2d 92
Docket Number5403.
PartiesIn the Matter of 2084-2086 BPE ASSOCIATES, Appellant, v. STATE OF NEW YORK DIVISION OF HOUSING AND COMMUNITY RENEWAL, Respondent.
Decision Date17 February 2005
15 A.D.3d 288
790 N.Y.S.2d 92
2005 NY Slip Op 01259
In the Matter of 2084-2086 BPE ASSOCIATES, Appellant,
v.
STATE OF NEW YORK DIVISION OF HOUSING AND COMMUNITY RENEWAL, Respondent.
5403.
Appellate Division of the Supreme Court of the State of New York, First Department.
February 17, 2005.

Order, Supreme Court, Bronx County (Norma Ruiz, J.), entered on or about December 11, 2003, which, upon reargument, adhered to the court's prior denial of this CPLR article 78 petition to set aside respondent's determination denying petitioner's rent restoration application, unanimously affirmed, without costs.


The original rent reduction proceeding was resolved in 1994-1995. It was no longer pending when, in January 2000, the tenant withdrew her request for the reduction in a stipulation in Housing Court (see Rent Stabilization Code [9 NYCRR] § 2520.13). That withdrawal did not mandate the granting of petitioner landlord's rent restoration application. Since the tenant claimed that petitioner had coerced her into signing the rent restoration application and that the services, in fact, had not been restored, respondent agency had the right to inspect the subject apartment.

Petitioner is correct that the bathroom tile conditions are de minimis. Respondent's determination is arbitrary and capricious insofar as it neither adhered to its own prior precedent nor indicated its reasons for reaching a different result on essentially the same facts (Matter of Charles A. Field Delivery Serv. [Roberts], 66 NY2d 516 [1985]; see also Matter of Klein v Levin, 305 AD2d 316, 317-318 [2003], lv denied 100 NY2d 514 [2003]). Because respondent did not adopt its de minimis policy until November 1995, i.e., after petitioner had filed its petition for administrative review from the original rent reduction order, petitioner's de minimis argument is neither barred by res judicata (see Matter of Hodes v Axelrod, 70 NY2d 364, 373 [1987]) nor an impermissible collateral attack (compare Matter of Jemrock Realty Co. v Roldan, 256 AD2d 122, 123 [1998]). Respondent failed to show that the issue of de minimis conditions was either raised or decided in the rent reduction proceeding; therefore, collateral estoppel does not apply (see Ryan v New York Tel. Co., 62 NY2d 494, 500-501 [1984]).

Nevertheless, respondent's denial of petitioner's rent restoration application is upheld because petitioner did not restore all services (see e.g. Matter of ANF Co. v Division of Hous. & Community

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13 practice notes
  • Idlewild 94-100 Clark, LLC v. City of N.Y.
    • United States
    • United States State Supreme Court (New York)
    • April 1, 2010
    ...results on essentially the same facts" ( Matter of 2084-2086 BPE Assocs. v. State of New York Div. of Housing. and Community Renewal, 15 A.D.3d 288, 790 N.Y.S.2d 92 [2005]; see also Matter of 721 Ninth Avenue, LLC v. New York State Div. of Hous. and Community Renewal, 8 A.D.3d 41, 43, 778 N......
  • FTBK Investor II LLC v. Genesis Holding LLC, 810163/2011
    • United States
    • United States State Supreme Court (New York)
    • August 19, 2014
    ...v. Maclas, 61 A.D.3d 569, 877 N.Y.S.2d 297 (1st Dep't 2009) ; 2084–2086 BPE Assoc. v. State of N.Y. Div. of Hous. & Community Renewal, 15 A.D.3d 288, 289, 790 N.Y.S.2d 92 (1st Dep't 2005) ; Figueroa v. Luna, 281 A.D.2d 204, 205, 721 N.Y.S.2d 635 (1st Dep't 2001). Even had an officer of plai......
  • McIntosh v. 7 Lawrence St. Inc., Index No. 114483/2011
    • United States
    • United States State Supreme Court (New York)
    • February 7, 2014
    ...these facts. Coleman v. Maclas, 61 A.D.3d 569 (1st Dep't 2009); 2084-2086 BPE Assoc. v. State of N.Y. Diy. of Hous. & Community Renewal, 15 A.D.3d 288, 289 (1st Dep't 2005); Figueroa v. Luna, 281 A.D.2d 204, 205 (1st Dep't 2001). Nevertheless, 7 Lawrence St. Inc. timely opposed plaintiff's ......
  • Royal Waste Servs., Inc. v. Interstate Fire & Cas. Co., Index No. 112999/2010
    • United States
    • United States State Supreme Court (New York)
    • January 31, 2014
    ...v. P.P.C. Constr., LLC, 45 A.D.3d 479, 480 (1st Dep't 2007); 2084-2086 BPE Assoc. v. State of N.Y. Div. of Hous. & Community Renewal, 15 A.D.3d 288, 289 (1st Dep't 2005); Figueroa v. Luna, 281 A.D.2d at 205. The unauthenticated checks from plaintiffs to Rocco and Kings Premium Service, even......
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13 cases
  • Idlewild 94-100 Clark, LLC v. City of N.Y.
    • United States
    • United States State Supreme Court (New York)
    • April 1, 2010
    ...results on essentially the same facts" ( Matter of 2084-2086 BPE Assocs. v. State of New York Div. of Housing. and Community Renewal, 15 A.D.3d 288, 790 N.Y.S.2d 92 [2005]; see also Matter of 721 Ninth Avenue, LLC v. New York State Div. of Hous. and Community Renewal, 8 A.D.3d 41, 43, 778 N......
  • FTBK Investor II LLC v. Genesis Holding LLC, 810163/2011
    • United States
    • United States State Supreme Court (New York)
    • August 19, 2014
    ...v. Maclas, 61 A.D.3d 569, 877 N.Y.S.2d 297 (1st Dep't 2009) ; 2084–2086 BPE Assoc. v. State of N.Y. Div. of Hous. & Community Renewal, 15 A.D.3d 288, 289, 790 N.Y.S.2d 92 (1st Dep't 2005) ; Figueroa v. Luna, 281 A.D.2d 204, 205, 721 N.Y.S.2d 635 (1st Dep't 2001). Even had an officer of plai......
  • McIntosh v. 7 Lawrence St. Inc., Index No. 114483/2011
    • United States
    • United States State Supreme Court (New York)
    • February 7, 2014
    ...these facts. Coleman v. Maclas, 61 A.D.3d 569 (1st Dep't 2009); 2084-2086 BPE Assoc. v. State of N.Y. Diy. of Hous. & Community Renewal, 15 A.D.3d 288, 289 (1st Dep't 2005); Figueroa v. Luna, 281 A.D.2d 204, 205 (1st Dep't 2001). Nevertheless, 7 Lawrence St. Inc. timely opposed plaintiff's ......
  • Royal Waste Servs., Inc. v. Interstate Fire & Cas. Co., Index No. 112999/2010
    • United States
    • United States State Supreme Court (New York)
    • January 31, 2014
    ...v. P.P.C. Constr., LLC, 45 A.D.3d 479, 480 (1st Dep't 2007); 2084-2086 BPE Assoc. v. State of N.Y. Div. of Hous. & Community Renewal, 15 A.D.3d 288, 289 (1st Dep't 2005); Figueroa v. Luna, 281 A.D.2d at 205. The unauthenticated checks from plaintiffs to Rocco and Kings Premium Service, even......
  • Request a trial to view additional results

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