Opinion
2013-03-6
In the Matter of JULIA 455, LLC, appellant, v. STATE of New York, DIVISION OF HOUSING AND COMMUNITY RENEWAL, respondent.
Mark L. Cortegiano, Middle Village, N.Y., for appellant. Gary R. Connor, New York, N.Y. (Patrice Huss of counsel), for respondent.
Mark L. Cortegiano, Middle Village, N.Y., for appellant. Gary R. Connor, New York, N.Y. (Patrice Huss of counsel), for respondent.
WILLIAM F. MASTRO, J.P., DANIEL D. ANGIOLILLO, CHERYL E. CHAMBERS, and JEFFREY A. COHEN, JJ.
In a proceeding pursuant to CPLR article 78 to review a determination of the New York State Division of Housing and Community Renewal dated September 15, 2010, which denied a petition for administrative review and confirmed a determination of a Rent Administrator dated September 30, 2009, which found that the petitioner's premises constituted a horizontal multiple dwelling subject to rent regulation, the petitioner appeals from a judgment of the Supreme Court, Kings County (Martin, J.), dated July 5, 2011, which denied the petition and dismissed the proceeding.
ORDERED that the judgment is affirmed, with costs.
The Supreme Court did not err in denying the petition and dismissing the proceeding. In determining the existence of a regulated horizontal multiple dwelling, the crucial question is whether there are sufficient indicia of common facilities, ownership, management, and operation to warrant treating the housing as an integrated unit and multiple dwelling subject to regulation ( see Matter of Salvati v. Eimicke, 72 N.Y.2d 784, 792, 537 N.Y.S.2d 16, 533 N.E.2d 1045;Matter of Waljoy Realty Co. v. New York State Div. of Hous. & Community Renewal, 242 A.D.2d 635, 664 N.Y.S.2d 754;Matter of Bambeck v. State Div. of Hous. & Community Renewal, Off. of Rent Admin., 129 A.D.2d 51, 517 N.Y.S.2d 130). While different combinations of those factors may be present in any given case, no one factor is determinative ( Matter of Bambeck v. State Div. of Hous. & Community Renewal, Off. of Rent Admin., 129 A.D.2d at 54, 517 N.Y.S.2d 130;Matter of Love Sec. Corp. v. Berman, 38 A.D.2d 169, 328 N.Y.S.2d 8).
Even where, as here, there are divergent factors that might lead to different conclusions, the determination of the New York State Division of Housing and Community Renewal (hereinafter the DHCR) should be upheld, if not arbitrary or irrational ( see Nine Hunts Lane Realty Corp. v. New York State Div. of Hous. & Community Renewal, 151 A.D.2d 465, 542 N.Y.S.2d 255;Matter of Krakower v. State of N.Y., Div. of Hous. & Community Renewal, Off. of Rent Admin., 137 A.D.2d 688, 524 N.Y.S.2d 778;Matter of Bambeck v. State Div. of Hous. & Community Renewal, Off. of Rent Admin., 129 A.D.2d at 54, 517 N.Y.S.2d 130;Matter of Love Sec. Corp. v. Berman, 38 A.D.2d at 170–171, 328 N.Y.S.2d 8). The presence of common ownership, management, and physical features of the subject properties demonstrates that the DHCR's determination had a rational basis, and was not arbitrary and capricious. That other existing factors might have supported a different conclusion does not render the DHCR's determination arbitrary and capricious ( see Matter of Pittis v. New York City Loft Bd., 201 A.D.2d 388, 607 N.Y.S.2d 355;see also Matter of Livingston Assoc. v. New York State Div. of Hous. & Community Renewal, 289 A.D.2d 245, 734 N.Y.S.2d 484).