Opinion
June 27, 1994
Appeal from the Supreme Court, Kings County (Yoswein, J.).
Ordered that the appeal from the judgment dated December 1, 1992, is dismissed, as that judgment was superseded by the order dated January 25, 1993, made upon reargument; and it is further,
Ordered that the order dated January 25, 1993, is affirmed; and it is further,
Ordered that the respondent is awarded one bill of costs.
Contrary to the contentions of Fulton Terrace Associates, the court properly treated its motion to renew and reargue as one for reargument since it was not based upon new facts which were unavailable at the time of the original motion (see, Marine Midland Bank v. Freedom Rd. Realty Assocs., 203 A.D.2d 538).
The determination under review was not arbitrary and capricious and was supported by a rational basis in the record (see, Matter of Central Mgt. Corp. v. Higgins, 191 A.D.2d 434). The First Amendment of the Offering Plan clearly indicates, inter alia, that the installation of new windows was to be completed at the sole expense of the sponsor and thus, nonpurchasing tenants were not subject to major capital improvement rent increases in connection with those costs (see, Matter of Central Mgt. Corp. v Higgins, supra). Mangano, P.J., Altman, Hart and Florio, JJ., concur.