| Matter of Samson Mgt., LLC v New York State Div. of Hous. &Community Renewal |
| 2010 NY Slip Op 06638 [76 AD3d 1024] |
| September 21, 2010 |
| Appellate Division, Second Department |
| In the Matter of Samson Management, LLC,Appellant, v New York State Division of Housing and Community Renewal,Respondent. |
—[*1] Gary R. Connor, New York, N.Y. (Caroline M. Sullivan of counsel), forrespondent.
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 datedNovember 25, 2008, the petitioner appeals, as limited by its brief, from so much of a judgment ofthe Supreme Court, Nassau County (Feinman, J.), dated May 22, 2009, as denied that branch ofthe petition which was to reinstate revoked major capital improvement rent increases relating toroof, waterproofing, repointing, and lintel work, and dismissed that portion of the proceeding.
Ordered that the judgment is reversed insofar as appealed from, on the law and the facts, withcosts, that portion of the proceeding which was to reinstate revoked Major Capital Improvementrent increases relating to roof, waterproofing, repointing, and lintel work is reinstated, and thematter is remitted to the Supreme Court, Nassau County, for further proceedings in accordanceherewith.
In 1999, the petitioner, Samson Management, LLC, the owner of a rent-stabilized apartmentbuilding in Long Beach, New York, applied for major capital improvement (hereinafter MCI)rent increases for its building. The application covered work on the front entrance door and theroof, along with waterproofing, repointing, and lintel work (hereinafter the work). In adetermination dated August 16, 2000, the respondent, the New York State Division of Housingand Community Renewal (hereinafter the DHCR), granted the petitioner a rent increase in thesum of $22.64 per room per month based on the work. However, on January 12, 2001, the DHCRreduced the rent increase to the sum of $19.25 per room per month based upon its correction ofthe subject building's room count.
In 2003, after a tenant filed a petition for administrative review (hereinafter Tenant's PAR 1),the DHCR issued an order remitting the proceeding to the rent administrator for furtherproceedings based on the DHCR's finding that the rent administrator should have inspected thebuilding. On December 13, 2004, the rent administrator rescinded the MCI rent increases exceptfor the work performed on the front entrance door. The rent administrator also reduced the rent[*2]increase to the sum of $0.46 per room per month, anddirected that this reduction would be effective as of December 1, 2004.
Both the petitioner and a tenant filed PARs (hereinafter the Petitioner's PAR and the Tenant'sPAR 2) challenging the December 13, 2004, determination reducing the rent increase to the sumof $0.46 per room per month. Significantly, neither the Petitioner's PAR nor the Tenant's PAR 2challenged the December 1, 2004, effective date of that determination. On August 2, 2007, theDHCR denied both of those PARs and affirmed the reduction, without altering the December 1,2004, effective date of the determination dated December 13, 2004. Neither the owner nor thetenant sought judicial review of the determination dated August 2, 2007.
On September 19, 2008, the DHCR, sua sponte, reopened the Petitioner's PAR and theTenant's PAR 2, in order to reconsider the December 1, 2004, effective date of the determinationdated December 13, 2004. On November 25, 2008, the DHCR modified the determination datedDecember 13, 2004, by declaring that the effective date of the reduced MCI rent increase wouldbe the effective date as set forth in the determination dated August 16, 2000, and, in effect,adopted its determination dated August 2, 2007, which, inter alia, denied the Petitioner's PAR.
The petitioner commenced this CPLR article 78 proceeding to review the determination ofthe DHCR dated November 25, 2008. The Supreme Court determined that the DHCR'sdetermination to modify the effective date of the December 13, 2004, determination was proper.It also concluded that the remaining issues raised by the petitioner were not properly before thecourt since they were not raised in the administrative proceeding. It therefore declined to addressthose issues, and denied this petition in its entirety and dismissed the proceeding. This was error.
Contrary to the Supreme Court's determination, the determination dated November 25, 2008,implicitly reconsidered, adopted, and then repromulgated the findings of the determination datedAugust 2, 2007, inter alia, denying the Petitioner's PAR. Under these circumstances, the issuesraised by the petitioner relating to the Petitioner's PAR were raised in the underlyingadministrative proceeding and, thus, are properly brought up for review in this CPLR article 78proceeding. Therefore, those issues should have been considered and determined by the SupremeCourt on this petition (see Matter of Lyons v Whitehead, 291 AD2d 497 [2002]).Accordingly, we remit the matter to the Supreme Court, Nassau County, to hear and determineon the merits the issues raised by the petitioner relating to the Petitioner's PAR, and thereafter toenter an appropriate amended judgment.
The respondent's remaining contentions are without merit. Dillon, J.P., Florio, Leventhal andChambers, JJ., concur.