Summary
dismissing breach of contract and breach of fiduciary duty claims as duplicative since they were "predicated on the same allegations and seek relief identical to that sought in the malpractice cause of action."
Summary of this case from Amadasu v. NgatiOpinion
110
January 31, 2002.
Order, Supreme Court, Bronx County (Douglas McKeon, J.), entered February 7, 2001, which denied petitioner landlord 780 P.P. Associates' application pursuant to CPLR article 78 to annul or modify a determination by the respondent, State of New York Division of Housing and Community Renewal, dated May 25, 2000, denying petitioner's petition for administrative review of the Rent Administrator's determinations reducing rents in the subject premises owned by petitioner for reduction of elevator service, and restoring rents to their pre-reduction levels only as of June 1, 1998, unanimously affirmed, without costs.
GLENN A. KICZALES CORY L. WEISS, for petitioner-appellant.
DAWN IVY SCHILLER, for respondent-respondent.
Before: Williams, J.P., Ellerin, Lerner, Rubin, Marlow, JJ.
It was not irrational for respondent DHCR to conclude that a complaint by petitioner's tenants, that brick and plaster were falling into the building's elevator, was substantiated by an inspection of the subject premises by the Department of Buildings (DOB) resulting in DOB's issuance of a violation for shifting bricks and of a consequent "cease use" directive respecting the building's elevator. This being the case, the DOB violation notice, properly relied upon by DHCR, provided a rational basis for the challenged rent reduction order and respondent DHCR's affirmance. In addition, DHCR's restoration of rents in the subject building effective June 1, 1998, rather than on an earlier date suggested by the landlord, was not arbitrary. Although petitioner claims that rents had been ordered restored as of an earlier date, it has not included in the record a copy of the restoration order upon which it purports to rely. Accordingly, inasmuch as petitioner has adduced no ground upon which we might find respondent's determination to have been arbitrary and capricious or an abuse of discretion, the petition was properly denied (see, Matter of Barklee Realty Co. v. New York State Div. of Hous. Community Renewal, 159 A.D.2d 416, appeal dismissed 76 N.Y.2d 844).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.