Opinion
9739 Index 158730/17
06-27-2019
In re GOLDEN HORSE REALTY, INC., Petitioner–Appellant, v. NEW YORK STATE DIVISION OF HOUSING AND COMMUNITY RENEWAL, et. al., Respondents–Respondents.
Golino Law Group, PLLC, New York (Santo Golino of counsel), for appellant. Mark F. Palomino, New York (Martin B. Schneider of counsel), for New York State Division of Housing and Community Renewal, respondent. Himmelstein, McConnell, Gribben, Donoghue & Joseph LLP, New York (Jesse Gribben of counsel), for Keith Lisy, respondent. Vernon & Ginsberg, LLP, New York (Bari Wolf of counsel), for Shannon Tyree and Jonathan Blitt, respondents.
Golino Law Group, PLLC, New York (Santo Golino of counsel), for appellant.
Mark F. Palomino, New York (Martin B. Schneider of counsel), for New York State Division of Housing and Community Renewal, respondent.
Himmelstein, McConnell, Gribben, Donoghue & Joseph LLP, New York (Jesse Gribben of counsel), for Keith Lisy, respondent.
Vernon & Ginsberg, LLP, New York (Bari Wolf of counsel), for Shannon Tyree and Jonathan Blitt, respondents.
Sweeny, J.P., Renwick, Webber, Oing, JJ.
Order and judgment (one paper), Supreme Court, New York County (Arlene P. Bluth, J.), entered April 11, 2018, denying the petition to annul a determination of respondent New York State Division of Housing and Community Renewal (DHCR), dated August 3, 2017, which denied the petition for administrative review (PAR) of an order determining that the apartment occupied by respondent Keith Lisy is subject to rent stabilization, and dismissing the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.
DHCR's determination that the subject apartment is rent stabilized was not arbitrary and capricious (see Matter of Ansonia Residents Assn. v. New York State Div. of Hous. & Community Renewal, 75 N.Y.2d 206, 213, 551 N.Y.S.2d 871, 551 N.E.2d 72 [1989] ). As relevant here, housing accommodations in buildings built before January 1, 1974, with more than six units are subject to rent stabilization (see Matter of Salvati v. Eimicke, 72 N.Y.2d 784, 791, 537 N.Y.S.2d 16, 533 N.E.2d 1045 [1988] ). A determination that a building remains "subject to the Rent Stabilization Code notwithstanding its conversion to a building with less than six apartments" is not arbitrary and capricious ( Matter of Ki Wai Leung v. Division of Hous. & Community Renewal of State of N.Y., 266 A.D.2d 545, 546, 698 N.Y.S.2d 557 [2d Dept. 1999] ; Matter of Shubert v. New York State Div. of Hous. & Community Renewal. Off. of Rent Admin., 162 A.D.2d 261, 556 N.Y.S.2d 618 [1st Dept. 1990] ; 9 NYCRR 2520.11 [d] ).
Here, there is no dispute that on the applicable base date, the subject building contained more than six housing accommodations. Some time thereafter, petitioner's predecessor-in-interest voluntarily elected to reduce the number of apartments. Accordingly, the determination that the building remained regulated was not arbitrary and capricious (see Matter of Shubert, 162 A.D.2d at 261, 556 N.Y.S.2d 618 ). Moreover, contrary to petitioner's contention, the record shows that the apartment at issue has been occupied as a residential unit since at least 1999, and it has been registered as rent stabilized by petitioner's predecessor-in-interest and by petitioner for a number of years. Therefore, the apartment remains subject to the rent stabilization law (see White Knight Ltd. v. Shea, 10 A.D.3d 567, 782 N.Y.S.2d 76 [1st Dept. 2004] ; Pineda v. Irvin, 40 Misc.3d 5, 968 N.Y.S.2d 311 [App. Term, 1st Dept. 2013] ).
Petitioner failed to preserve its argument that two other apartments were improperly registered as rent stabilized units since those units were specifically omitted from the PAR (see Matter of Khan v. N.Y. State Dept. of Health, 96 N.Y.2d 879, 730 N.Y.S.2d 783, 756 N.E.2d 71 [2001] ; Matter of Curry v. New York City Hous. Auth., 161 A.D.3d 578, 579, 78 N.Y.S.3d 18 [1st Dept. 2018] ).
We have considered petitioner's remaining arguments and find them unavailing.