Opinion
15594 Index No. 150661/20 Case No. 2021-01233
03-24-2022
In the Matter of Judith E. HASKIN, Petitioner–Appellant, v. The NEW YORK STATE DIVISION OF HOUSING AND COMMUNITY RENEWAL, Respondent–Respondent. Stahl Associates, LLC, Intervenor-Respondent.
Grimble & LoGuidice, LLP, New York (Robin LoGuidice of counsel), for appellant. Mark F. Palomino, New York (Jeffrey G. Kelly of counsel), for The New York State Division of Housing and Community Renewal, respondent. Ingram Yuzek Gainen Carroll & Bertolotti, LLP, New York (Michael D. Capozzi of counsel), for Stahl Associates, LLC, respondent.
Grimble & LoGuidice, LLP, New York (Robin LoGuidice of counsel), for appellant.
Mark F. Palomino, New York (Jeffrey G. Kelly of counsel), for The New York State Division of Housing and Community Renewal, respondent.
Ingram Yuzek Gainen Carroll & Bertolotti, LLP, New York (Michael D. Capozzi of counsel), for Stahl Associates, LLC, respondent.
Kern, J.P., Moulton, Rodriguez, Pitt, Higgitt, JJ.
Judgment (denominated an order), Supreme Court, New York County (Eileen A. Rakower, J.), entered November 2, 2020, denying the petition to annul the determination of respondent New York State Division of Housing and Community Renewal (DHCR), dated November 19, 2019, which denied petitioner's rent overcharge claims and challenge to the rent regulatory status of the premises, and dismissing the proceeding brought under CPLR article 78, unanimously affirmed, without costs.
DHCR's finding that petitioner's apartment is not rent-stabilized was not arbitrary and capricious, as it was rationally supported by the record ( CPLR 7803[3] ; Matter of Pell v. Board of Educ. 0f Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 N.Y.2d 222, 231, 356 N.Y.S.2d 833, 313 N.E.2d 321 [1974] ). According to the record, the landlord performed work on the apartment approximately eight years before petitioner filed her overcharge complaint, and the apartment then became deregulated through high-rent vacancy prior to the commencement of petitioner's tenancy (see Matter of Bazan v. New York State Div. of Hous. & Community Renewal, 189 A.D.3d 495, 496, 138 N.Y.S.3d 11 [1st Dept. 2020], citing 9 NYCRR 2520.11 [r][4]; see also 9 NYCRR 2522.4 [a][1]).
Even though the law required the landlord to maintain records of individual apartment improvements (IAIs) for only four years, the landlord nonetheless submitted an affidavit from its managing agent, along with invoices, all of which demonstrated that work was done (see former CPLR 213–a ; former Administrative Code of City of N.Y. § 26–516[a][2]; 9 NYCRR 2526.1 [a][2][ii]; see also Matter of Regina Metro. Co., LLC v. New York State Div. of Hous. & Community Renewal, 35 N.Y.3d 332, 355–356, 130 N.Y.S.3d 759, 154 N.E.3d 972 [2020] ). Given these submissions, and given petitioner's own statement in her complaint that renovations were done before a prior tenant moved in, it was not arbitrary and capricious for DHCR to draw upon its own expertise and resources in concluding that $28,126.80 was not an inordinate expenditure to renovate an apartment that had become vacant for the first time in at least 21 years (see Matter of Boyd v. New York State Div. of Hous. & Community Renewal, 110 A.D.3d 594, 598, 973 N.Y.S.2d 609 [2013] [Gische, J., dissenting], revd 23 N.Y.3d 999, 992 N.Y.S.2d 764, 16 N.E.3d 1243 [2014] ).
The purported insufficiency of the IAIs do not constitute indicia of fraud (see Matter of Boyd, 23 N.Y.3d at 1000–1001, 992 N.Y.S.2d 764, 16 N.E.3d 1243 ). Nor does petitioner demonstrate a violation of lawful procedure or denial of due process due to the lack of inspections and evidentiary hearings, since she was provided with the landlord's submissions and given the opportunity to respond ( 9 NYCRR 2527.5 [b]-[d], [h]; see Matter of Estate of Goldman v. New York State Div. of Hous. & Community Renewal, Off. of Rent Admin., 228 A.D.2d 192, 192, 643 N.Y.S.2d 99 [1st Dept. 1996], lv denied 89 N.Y.2d 805, 653 N.Y.S.2d 917, 676 N.E.2d 499 [1996] ; Matter of Aguayo v. New York State Div. of Hous. & Community Renewal, 150 A.D.2d 565, 566–567, 541 N.Y.S.2d 133 [2d Dept. 1989] ). What is more, any decision to order a hearing or to conduct inspections is discretionary ( 9 NYCRR 2527.5 [b], [h]). We have considered petitioner's remaining contentions and find them unavailing.