Opinion
October 24, 2000.
Pro Se, for petitioner-appellant.
Nava Listokin, Eileen O'Toole, for respondents-respondents.
Tom, J.P., Mazzarelli, Ellerin, Lerner, Andrias, JJ.
Order and judgment (one paper), Supreme Court, New York County (Michael Stallman, J.), entered March 13, 2000, which denied petitioner tenant's application to annul respondent DHCR's determination that various apartments in the subject building, including petitioner's, are exempt from rent regulation, and dismissed the petition, unanimously affirmed, without costs.
DHCR's determination that the subject building was substantially rehabilitated, and that the apartments of post-rehabilitation tenants are therefore exempt from rent stabilization (Emergency Tenant Protection Act [McKinney's Uncons. Laws of N Y 8625(a)(5)]; Rent Stabilization Code [9NYCRR] 2520.11[e]), has a rational basis in the landlord's documentation showing extensive renovations to the building (DHCR Operational Bulletin 95-2; see generally, Matter of Pell v. Board of Educ., 34 N.Y.2d 222, 230-231; Matter of Salvati v. Eimicke, 72 N.Y.2d 784, 791). The possibility that the landlord might have been able to recoup its expenses through major capital improvement rent increases is pertinent to but not conclusive of whether there was a substantial rehabilitation (see, Thames v. Veterans Serv. Corp., NYLJ, Mar. 23, 1994, at 27, explaining Pape v. Doar, 160 A.D.2d 213). Petitioner's claim that his apartment was not subject to rent regulation on December 31, 1973, and therefore was not subject to the substantial rehabilitation exemption, was not raised before the Rent Administrator, and was therefore properly refused consideration by the motion court (see, Matter of Fanelli v. New York City Conciliation Appeals Bd., 90 A.D.2d 756, 757, affd 58 N.Y.2d 952).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.