Opinion
2012-04939
11-12-2014
In the Matter of JP & ASSOCIATES CORP., appellant, v. NEW YORK STATE DIVISION OF HOUSING AND COMMUNITY RENEWAL, respondent.
John J. Ciafone, Astoria, N.Y., for appellant. Gary R. Connor, New York, N.Y. (Jack Kuttner of counsel), for respondent.
John J. Ciafone, Astoria, N.Y., for appellant.
Gary R. Connor, New York, N.Y. (Jack Kuttner of counsel), for respondent.
MARK C. DILLON, J.P., RUTH C. BALKIN, JEFFREY A. COHEN, and BETSY BARROS, JJ.
Opinion In a proceeding pursuant to CPLR article 78, inter alia, to review a determination of the Deputy Commissioner of the New York State Division of Housing and Community Renewal, dated May 5, 2011, which dismissed, as untimely, a petition for administrative review of a determination of the Rent Administrator dated March 8, 2011, restoring a rent reduction, the petitioner appeals from a judgment of the Supreme Court, Kings County (Dabiri, J.), dated January 4, 2012, which denied the petition and dismissed the proceeding.
ORDERED that the judgment is affirmed, with costs.
On March 8, 2011, the Rent Administrator of the New York State Division of Housing and Community Renewal (hereinafter the DHCR), upon reconsideration, reinstated a rent reduction for an apartment in a building owned by the petitioner. The petitioner then had 35 days to file a petition for administrative review (hereinafter PAR), or forfeit its right to have the determination reviewed (see Rent Stabilization Code [9 NYCRR] § 2529.2 ). The petitioner's PAR was filed with the Deputy Commissioner of the DHCR on April 19, 2011, 42 days after issuance of the order, and the Deputy Commissioner dismissed the PAR as untimely.
In this CPLR article 78 proceeding in which the petitioner challenges an agency determination that was not made after a quasi-judicial hearing, we must consider whether the determination was made in violation of lawful procedure, was affected by an error of law, or was arbitrary and capricious or an abuse of discretion (see CPLR 7803[3] ; Matter of London Leasing Ltd. Partnership v. Division of Hous. & Community Renewal, 98 A.D.3d 668, 670, 950 N.Y.S.2d 145 ; Matter of Halperin v. City of New Rochelle, 24 A.D.3d 768, 770, 809 N.Y.S.2d 98 ). In such a proceeding, courts “examine whether the action taken by the agency has a rational basis,” and will overturn that action only “where it is ‘taken without sound basis in reason’ or ‘regard to the facts' ” (Matter of Wooley v. New York State Dept. of Correctional Servs., 15 N.Y.3d 275, 280, 907 N.Y.S.2d 741, 934 N.E.2d 310, quoting Matter of Peckham v. Calogero, 12 N.Y.3d 424, 431, 883 N.Y.S.2d 751, 911 N.E.2d 813 ; see Matter of Pell v. Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 N.Y.2d 222, 232, 356 N.Y.S.2d 833, 313 N.E.2d 321 ), or where it is “arbitrary and capricious” (Matter of Deerpark Farms, LLC v. Agricultural & Farmland Protection Bd. of Orange County, 70 A.D.3d 1037, 1038, 896 N.Y.S.2d 126 ).
Here, the DHCR's strict enforcement of the time requirement in the Rent Stabilization Code was rational, and was not arbitrary and capricious (see Matter of Clarendon Mgt. Corp. v. New York State Div. of Hous. & Community Renewal, 271 A.D.2d 688, 689, 707 N.Y.S.2d 858 ; Matter of Dowling v. Holland, 245 A.D.2d 167, 169, 666 N.Y.S.2d 585 ; Matter of Ruiz v. New York State Div. of Hous. & Community Renewal, 210 A.D.2d 338, 339, 620 N.Y.S.2d 294 ).
The appellant's remaining contentions are not properly before this Court (see Matter of Peckham v. Calogero, 12 N.Y.3d at 430, 883 N.Y.S.2d 751, 911 N.E.2d 813 ; HSBC Bank USA, N.A. v. Valentin, 72 A.D.3d 1027, 1030, 900 N.Y.S.2d 350 ). Accordingly, the Supreme Court properly denied the petition and dismissed the CPLR article 78 proceeding.