Opinion
56
February 25, 2003
Appeal, by permission of the Appellate Division of the Supreme Court in the First Judicial Department, from an order of that Court, entered May 30, 2002, which (1) reversed, on the law, a judgment and order amending judgment of the Supreme Court (Robert Lippmann, J.), entered in New York County, awarding petitioner attorneys' fees following his proceeding pursuant to CPLR article 78 arising from the denial by respondent Division of Housing and Community Renewal of his fair market rent appeal, and (2) vacated the award. The following question was certified by the Appellate Division: "Was the order of this Court, which reversed the order of Supreme Court, properly made?"
Submitted by Robert M. Petrucci, for appellant.
Submitted by Martin B. Schneider, for respondent.
Chief Judge Kaye and Judges Smith, Ciparick, Wesley, Rosenblatt, Graffeo and Read concur.
MEMORANDUM:
The order of the Appellate Division should be affirmed with costs.
The Appellate Division did not abuse its discretion when it determined that DHCR was substantially justified in asserting that it could not review proceedings that involved matters that arose prior to the reviewable four-year period (see Matter of Gilman v. New York State Div. of Hous. Community Renewal, 99 N.Y.2d 144) and thus, reversed Supreme Court's order awarding appellant attorneys' fees pursuant to the New York State Equal Access to Justice Act (see New York State Clinical Lab. Ass'n, Inc. v. Kaladjian, 85 N.Y.2d 346, 356-359). Furthermore, the Appellate Division did not improperly shift the government's burden to show that "its case had a reasonable basis both in law and fact" (id. at 356).
On review of submissions pursuant to section 500.4 of the Rules, order affirmed, with costs, in a memorandum.