Opinion
9700 Index 154058/17
06-25-2019
In re INDEPENDENCE HOUSE TENANTS' ASSOCIATION, et al., Petitioners, v. NEW YORK CITY HOUSING PRESERVATION AND DEVELOPMENT, et al., Respondents.
Jack L. Lester, New York, for petitioners. Zachary W. Carter, Corporation Counsel, New York (Eva L. Jerome of counsel), for New York City Department of Housing Preservation and Development, respondent. Kellner, Herlihy, Getty & Friedman, LLP, New York (Jeanne Williams of counsel), for West Side Federation for Senior and Supportive Housing, respondent.
Jack L. Lester, New York, for petitioners.
Zachary W. Carter, Corporation Counsel, New York (Eva L. Jerome of counsel), for New York City Department of Housing Preservation and Development, respondent.
Kellner, Herlihy, Getty & Friedman, LLP, New York (Jeanne Williams of counsel), for West Side Federation for Senior and Supportive Housing, respondent.
Renwick, J.P., Manzanet–Daniels, Webber, Oing, JJ.
Although this proceeding was improperly transferred to this Court, because the determination was not made pursuant to an administrative hearing (see Independence Plaza N. Tenants Assn. v. Roberts, 276 A.D.2d 427, 715 N.Y.S.2d 16 [1st Dept. 2000] ; Matter of Halperin v. City of New Rochelle, 24 A.D.3d 768, 770–771, 809 N.Y.S.2d 98 [2d Dept. 2005], lv denied 7 N.Y.3d 708, 822 N.Y.S.2d 482, 855 N.E.2d 798 [2006] ; CPLR 7803[4] ; 7804[g] ), we nevertheless address the merits of the petition in the interests of judicial economy (see Matter of DeMonico v. Kelly, 49 A.D.3d 265, 852 N.Y.S.2d 124 [1st Dept. 2008] ).
HPD's determination has a rational basis in the record, namely, the projections of revenue and expenses, which are supported by various underlying financial documents and reports, the owner's audited financial statements, and an engineer's report and assessment addressing the physical needs of the building and the scope of the repair work necessary (see Matter of Duane St. Assoc. v. Roberts, 276 A.D.2d 427, 714 N.Y.S.2d 485 [1st Dept. 2000] ; Matter of Brookdale Hosp. Ctr. Tenants Assn. v. Goldman, 99 A.D.2d 702, 703, 471 N.Y.S.2d 597 [1st Dept. 1984] ; Matter of Greene v. Goodwin, 46 A.D.2d 69, 73, 361 N.Y.S.2d 186 [2d Dept. 1974], affd 36 N.Y.2d 886, 372 N.Y.S.2d 644, 334 N.E.2d 594 [1975] ; Matter of Podhaizer v. Eimicke, 141 A.D.2d 546, 529 N.Y.S.2d 707 [2d Dept. 1988], lv denied 72 N.Y.2d 810, 534 N.Y.S.2d 938, 531 N.E.2d 658 [1988] ).
HPD's consideration of the availability of Section 8 vouchers when making its determination, which took into account the availability of funds and tenants' continued access to rental units within their means, does not render the determination arbitrary and capricious or an abuse of discretion (see Winthrop Gardens v. Goodwin, 58 A.D.2d 764, 396 N.Y.S.2d 400 [1st Dept. 1977] ; Brookdale, 99 A.D.2d at 703, 471 N.Y.S.2d 597 ). HPD's failure to address petitioners' arguments about the potential availability of alternative funding sources in its determination also does not render the determination arbitrary (see Duane St. Assoc. , 276 A.D.2d at 427, 714 N.Y.S.2d 485 ). HPD reviewed and considered the testimony presented at a public hearing on the rent increase, where the issue of alternative funding sources was raised.
We have considered petitioners' remaining arguments and find them unavailing.