| Matter of Joralemon Realty NY, LLC v State of N.Y. Div. ofHous. & Community Renewal |
| 2013 NY Slip Op 00489 [102 AD3d 965] |
| January 30, 2013 |
| Appellate Division, Second Department |
| In the Matter of Joralemon Realty NY, LLC,Appellant, v State of New York Division of Housing and Community Renewal,Respondent. Riverside Apartments Tenants Association, NonpartyRespondent. |
—[*1] Gary R. Connor, New York, N.Y. (Maria I. Doti of counsel), forrespondent-respondent. Collins Dobkin & Miller LLP, New York, N.Y. (Stephen Dobkin of counsel), fornonparty respondent.
In a proceeding pursuant to CPLR article 78 to review a determination of the NewYork State Division of Housing and Community Renewal dated April 28, 2010, whichdenied the petition for administrative review and confirmed the determination of the RentAdministrator dated July 14, 2009, denying the petitioner's application for permission tomodify services at its rent-regulated property, the petitioner appeals from a judgment ofthe Supreme Court, Kings County (Bayne, J.), entered May 6, 2011, which denied thepetition and dismissed the proceeding.
Ordered that the judgment is affirmed, with one bill of costs.
The petitioner, Joralemon Realty NY, LLC (hereinafter the petitioner), is the ownerof a rent-regulated apartment complex known as the Riverside Apartments, located at thesouthwest corner of Joralemon Street and Columbia Place in Brooklyn. In 2008, thepetitioner filed an application with the New York State Division of Housing andCommunity Renewal (hereinafter the DHCR) for permission to modify services at thecomplex pursuant to section 2522.4 (e) of the Rent Stabilization Code (9 NYCRR 2522.4[e]). The services that the petitioner sought to modify were provided by the courtyard ofthe complex; specifically, the petitioner sought to build an underground parking facilityfour feet below the courtyard, with 105 parking spaces that would be available to rent ona monthly basis. The plans provided that vehicle ingress to and egress from the parkingfacility would occupy 10% of the courtyard. Soil to the depth of approximately four feetwould be placed on the roof of the parking facility to support the courtyard's vegetation.Although 100-year-old trees would have to be removed from the existing courtyard toallow for the addition of the parking facility, they would be replaced with new trees,some of which would be mature at planting. The new courtyard would have more greenspace than the existing courtyard. Additionally, new benches, walkways, and plants,among other things, would be added to the courtyard.[*2]
The DHCR's Rent Administrator denied thepetitioner's application, finding that the proposed parking facility and new courtyardwould result in a decrease in services to the tenants and, thus, were not adequatesubstitutes for the current courtyard. The DHCR denied the petition for administrativereview, affirming the Rent Administrator's determination that the proposed changeswould result in a decrease in services. The Supreme Court denied the petitioner's CPLRarticle 78 petition and dismissed the proceeding. The petitioner appeals.
In this proceeding, in which the petitioner challenges an agency determination thatwas not made after a quasi-judicial hearing, we must consider whether the determinationwas made in violation of lawful procedure, was affected by an error of law, or wasarbitrary and capricious or an abuse of discretion (see CPLR 7803 [3]; Matter of London Leasing Ltd.Partnership v Division of Hous. & Community Renewal, 98 AD3d 668, 670[2012]; Matter of Halperin vCity of New Rochelle, 24 AD3d 768, 770 [2005]). In such a proceeding, courts"examine whether the action taken by the agency has a rational basis," and will overturnthat action only "where it is 'taken without sound basis in reason' or 'regard to the facts' "(Matter of Wooley v New YorkState Dept. of Correctional Servs., 15 NY3d 275, 280 [2010], quoting Matter of Peckham vCalogero, 12 NY3d 424, 431 [2009]; see Matter of Pell v Board of Educ. ofUnion Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, WestchesterCounty, 34 NY2d 222, 232 [1974]), or where it is "arbitrary and capricious" (Matter of Deerpark Farms, LLC vAgricultural & Farmland Protection Bd. of Orange County, 70 AD3d 1037,1038 [2010]). In reviewing the DHCR's determination, "[t]he court may not substitute itsjudgment for that of the DHCR" (Matter of 85 E. Parkway Corp. v New York StateDiv. of Hous. & Community Renewal, 297 AD2d 675, 676 [2002]). "The DHCR'sinterpretation of the statutes and regulations it administers, if reasonable, must beupheld" (id.).
Here, contrary to the petitioner's contention, the DHCR's determination that the RentAdministrator did not err in finding that the proposed modification did not constitute anadequate substitute for the courtyard was rational, and was not arbitrary and capricious.Although the proposal called for a new courtyard to be built in place of the currentcourtyard, there was evidence in the record to support the determination that such acourtyard would be inferior and, thus, not an adequate substitute for the currentcourtyard.
The petitioner's remaining contentions are without merit.
Accordingly, the Supreme Court properly denied the petition and dismissed theproceeding. Angiolillo, J.P., Leventhal, Lott and Austin, JJ., concur.