| Matter of Delillo v New York State Div. of Hous. & CommunityRenewal |
| 2007 NY Slip Op 09029 [45 AD3d 682] |
| November 13, 2007 |
| Appellate Division, Second Department |
| In the Matter of Carol A. Delillo, Appellant, v New YorkState Division of Housing and Community Renewal, Respondent. |
—[*1] Gary R. Connor, New York, N.Y. (Martin B. Schneider of counsel), for respondent.
In a proceeding pursuant to CPLR article 78 to review a determination of the DeputyCommissioner of the New York State Division of Housing and Community Renewal, datedAugust 2, 2005, which, inter alia, denied the petition for administrative review and confirmed adetermination of the Rent Administrator, dated February 4, 2005, finding that the subjectapartment was owner-occupied decontrolled and was not subject to regulation under the RentStabilization Law and Code, the petitioner appeals from a judgment of the Supreme Court, KingsCounty (Held, J.), dated November 22, 2006, which denied the petition and, in effect, dismissedthe proceeding.
Ordered that the judgment is affirmed, without costs or disbursements.
In reviewing a determination made by an administrative agency such as the New York StateDivision of Housing and Community Renewal (hereinafter the DHCR), the court's inquiry islimited to whether the determination is arbitrary and capricious, or without a rational basis in therecord and a reasonable basis in law (see CPLR 7803 [3]; Matter of Classic Realty vNew York State Div. of Hous. & Community Renewal, 2 NY3d 142 [2004]; Matter ofMelendez v New York State Div. of Hous. & Community Renewal, 304 AD2d 580;Matter of 85 E. Parkway Corp. v New York State Div. of Hous. & Community Renewal,297 AD2d 675 [2002]; Matter of 47-40 41st Realty Corp. v New York State Div. ofHous. & Community Renewal, 225 AD2d 547 [1996]). An agency's interpretation of thestatutes and regulations that it administers is entitled to deference, and must be upheld ifreasonable (see Matter of Melendez v New York State Div. of Hous. & Community Renewal,304 AD2d 580; Matter of 85 E. Parkway Corp. v New York State Div. of Hous. &Community Renewal, 297 AD2d 675 [2002]; Matter of 47-40 41st Realty Corp. v NewYork State Div. of Hous. & Community [*2]Renewal, 225AD2d 547 [1996]).
The determination of the DHCR's Rent Administrator that the subject apartment wasowner-occupied decontrolled and not subject to rent control had a reasonable basis in law and arational basis in the record, and was not arbitrary and capricious. The petitioner tenant(hereinafter the tenant) initially asserted that her grandmother, who owned the subject buildinguntil 1960, lived in the subject apartment with the tenant and the tenant's immediate family untilshe sold the building in 1960 and moved into a different apartment. It was not until after the RentAdministrator determined, on this basis, that the subject apartment had become owner-occupieddecontrolled, that the tenant claimed, in her request for reconsideration and in her petition foradministrative review, that her grandmother had resided at least partially in another apartmentbesides the subject apartment until she moved to a different apartment in 1960. Additionally, thetenant never claimed or established either that her grandmother did not reside in the subjectapartment for at least one year before she moved to a different apartment, or that her parents paidrent to her grandmother while the tenant's grandmother resided in the subject apartment. TheDHCR thus reasonably interpreted section 2200.2 (f) (11) of the New York City Rent andEviction Regulations (9 NYCRR 2200.1 et seq.) in finding that the subject apartment wasowner-occupied decontrolled in or about 1959. Pursuant to that provision, "[h]ousingaccommodations rented after April 1, 1953, which were or are continuously occupied by theowner thereof for a period of one year prior to the date of renting" are not subject to the Rent andEviction Regulations (9 NYCRR 2200.2 [f] [11]).
Moreover, the Commissioner reasonably upheld the Rent Administrator's finding that thesubject building was not subject to the Rent Stabilization Code (see 9 NYCRR2520.1 et seq.), because it contains fewer than six apartments. Pursuant to RentStabilization Code § 2520.11 (d), "buildings containing fewer than six housingaccommodations on the date the building first became subject to the RSL [Rent StabilizationLaw]" are not subject to regulation pursuant to the Rent Stabilization Law (9 NYCRR 2520.11[d]). Prior to asserting her contrary claims made after the Rent Administrator's determination, thetenant never asserted that there were more than five apartments in the subject building. Schmidt,J.P., Goldstein, Skelos and Fisher, JJ., concur.