| Matter of Clark v New York State Div. of Hous. & Community Renewal |
| 2021 NY Slip Op 02153 |
| Decided on April 7, 2021 |
| Appellate Division, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided on April 7, 2021 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
MARK C. DILLON, J.P.
SYLVIA O. HINDS-RADIX
HECTOR D. LASALLE
BETSY BARROS, JJ.
2017-10766
(Index No. 11622/15)
v
New York State Division of Housing and Community Renewal, et al., respondents.
Janet E. Sabel, Brooklyn, NY (Stephen Myers of counsel), for appellants.
Mark F. Palomino, New York, NY (Kathleen Lamar of counsel), for respondent New York State Division of Housing and Community Renewal.
Rosenberg & Estis, P.C., New York, NY (Jeffrey Turkel of counsel), for respondents Carnegie Management, Inc., and Ditmas Park, LLC.
DECISION & ORDER
In a proceeding pursuant to CPLR article 78 to review a determination of a Deputy Commissioner of the New York State Division of Housing and Community Renewal dated July 22, 2015, which denied a petition for administrative review and affirmed a Rent Administrator's determination dated January 12, 2012, finding that the subject building was substantially rehabilitated and therefore exempt from rent stabilization, the petitioners appeal from a judgment of the Supreme Court, Kings County (Peter P. Sweeney, J.), dated August 18, 2017. The judgment denied the petition and dismissed the proceeding.
ORDERED that the judgment is affirmed, with one bill of costs to the respondents appearing separately and filing separate briefs.
In September 2015, the petitioners Rachel Clark, individually and in her capacity as President of the Ditmas Arms Tenants' Association, Cassandra Nimmonds, Bridget Brown, Wanda Warren, and Pearl Joy Noel commenced this proceeding pursuant to CPLR article 78 seeking to review a determination of a Deputy Commissioner of the New York State Division of Housing and Community Renewal (hereinafter DHCR) dated July 22, 2015, denying their petition for administrative review and affirming a January 12, 2012 determination of the Rent Administrator that the building in which the petitioners live on East 21st Street in Brooklyn (hereinafter the building) was exempt from rent regulation based upon a substantial rehabilitation of the building carried out in the late 1980s. After an additional tenant, Cecille Carrington, was granted leave to intervene as a petitioner, the Supreme Court denied the petition and dismissed the proceeding. The petitioners appeal. We affirm.
In reviewing a determination of the DHCR, the court must uphold the determination unless it is arbitrary and capricious and without a rational basis (see Matter of 65-61 Saunders St. Assoc., LLC v New York State Div. of Hous. & Community Renewal, 154 AD3d 930, 931; Matter of Velasquez v New York State Div. of Hous. & Community Renewal, 130 AD3d 1045, 1046-1047). [*2]Here, the DHCR's determination that the subject building had been substantially rehabilitated within the meaning of Rent Stabilization Code (9 NYCRR) § 2520.11(e) and DHCR Operational Bulletin No. 95-2 was rationally based on the record and not arbitrary and capricious (see Matter of Rowe v Calogero, 56 AD3d 567; Matter of Various Tenants of 123 Guernsey St. v New York State Div. of Hous. & Community Renewal, 19 AD3d 503, 504).
The petitioners' remaining contention is without merit.
DILLON, J.P., HINDS-RADIX, LASALLE and BARROS, JJ., concur.
ENTER:Aprilanne Agostino
Clerk of the Court