| Matter of Acevedo v New York State Div. of Hous. & CommunityRenewal |
| 2009 NY Slip Op 08219 [67 AD3d 785] |
| November 10, 2009 |
| Appellate Division, Second Department |
| In the Matter of Nilda Acevedo, Respondent, v New YorkState Division of Housing and Community Renewal, Appellant, and Elizabeth Velez,Intervenor-Respondent. |
—[*1] Ronald D. Hariri, New York, N.Y., for petitioner-respondent. The De Castro Law Firm, New York, N.Y. (Jose A. Arias, Jr., of counsel), forintervenor-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 datedJanuary 9, 2006, which denied a request for administrative review and confirmed a determinationof the District Rent Administrator dated June 1, 2005, awarding the tenant treble damages forrent overcharges, the New York State Division of Housing and Community Renewal appealsfrom a judgment of the Supreme Court, Kings County (Ruchelsman, J.), dated June 11, 2006,which granted the petition, annulled the determination dated January 9, 2006, vacated the awardof treble damages, and remitted the matter to the New York State Division of Housing andCommunity Renewal for a hearing on the owner's petition for administrative review.
Ordered that the judgment is reversed, on the law, with one bill of costs, the determinationdated January 9, 2006, is confirmed, the award of treble damages is reinstated, the petition isdenied, and the proceeding is dismissed on the merits.
"Judicial review of administrative determinations is confined to the 'facts and record adducedbefore the agency' " (Matter of Yarbough v Franco, 95 NY2d 342, 347 [2000],quoting Matter of Fanelli v New York City Conciliation & Appeals Bd., 90 AD2d 756,757 [1982]; see Matter of Brooks vNew [*2]York City Hous. Auth., 58 AD3d 836, 838[2009]). Thus, "in a CPLR article 78 proceeding to review a determination of the [New YorkState Division of Housing and Community Renewal (hereinafter the DHCR)], the court islimited to a review of the record which was before the DHCR and to the question of whether itsdetermination was arbitrary and capricious and without a rational basis" (Matter of 36-08Queens Realty v New York State Div. of Hous. & Community Renewal, 222 AD2d 440, 441[1995]). Here, the petitioner did not raise any specific objections to the order of the District RentAdministrator in her petition for administrative review. Hence, the petitioner's instant claims,raised for the first time in the instant proceeding, were not amenable to review by the SupremeCourt (see Matter of Welch v New York State Div. of Hous. & Community Renewal,287 AD2d 725, 726 [2001]; Matter of Mott v New York State Div. of Hous. & CommunityRenewal, 287 AD2d 720 [2001]; Matter of Aguayo v New York State Div. of Hous. &Community Renewal, 150 AD2d 565, 566-567 [1989]).
In addition, the petitioner's submissions failed to establish that the rent increase she imposedon the subject tenant was valid. Although the petitioner submitted to the DHCR an abundance ofreceipts, various invoices, and the copies of the fronts of checks, the documentation she providedto the DHCR was facially insufficient to establish that the claimed gut renovation of the subjectapartment was in fact done, or that she had incurred the claimed expenses. Under thesecircumstances, the petitioner was required to submit a breakdown of the claimed expenses toallow the DHCR to distinguish between repairs and renovation (see Jemrock Realty Co. LLC vKrugman, 64 AD3d 290, 296-297 [2009]; Matter of Ador Realty, LLC v Division of Hous. & CommunityRenewal, 25 AD3d 128, 138, 139 [2005]; Matter of Maya Realty Assoc. vHolland, 261 AD2d 405, 406 [1999]; Matter of Charles Birdoff & Co. v New York StateDiv. of Hous. & Community Renewal, 204 AD2d 630, 631 [1994]). Since the petitionerfailed to do so, despite the requests of DHCR for proper documentation of the claimed individualapartment improvement, the record supports the District Rent Administrator's order and theDeputy Commissioner's determination regarding the subject tenant's complaint of a rentovercharge.
The petitioner's claim that an evidentiary hearing was required is without merit (see Matter of 508 Realty Assoc., LLC vNew York State Div. of Hous. & Community Renewal, 61 AD3d 753, 755 [2009]; Matter of DeSilva v New York State Div.of Hous. & Community Renewal Off. of Rent Admin., 34 AD3d 673, 674 [2006];Matter of Richter v New York State Div. of Hous. & Community Renewal, 204 AD2d648 [1994]; Matter of Rubin v Eimicke, 150 AD2d 697, 698 [1989]; Matter of PlazaRealty Invs. v New York City Conciliation & Appeals Bd., 110 AD2d 704 [1985]). Skelos,J.P., Florio, Balkin and Leventhal, JJ., concur.