Opinion
January 4, 1996
Appeal from the Supreme Court, Bronx County (Hansel McGee, J.).
The IAS Court did not err by considering the issue of whether the "primary use" exemption to the Rent Stabilization Code ( 9 NYCRR 2520.6 [r] [4] [x]) was applicable here.
An article 78 proceeding is limited to consideration of the evidence and arguments raised before the agency when the administrative determination was rendered and "[t]he function of the court * * * is to determine * * * whether the determination had a rational basis in the record or was arbitrary and capricious" ( Matter of Fanelli v New York City Conciliation Appeals Bd., 90 A.D.2d 756, 757, affd 58 N.Y.2d 952). Here, since determination of the primary use issue is implicit in any rational determination pursuant to section 2520.6 (r) (4) (x) as to whether the Rent Stabilization Code was applicable to plaintiff's parking garage, and since the administrative record contained evidence relevant to determining the primary use issue, review by the IAS Court was appropriate.
However, it was error to resolve the issue on the basis of the record presented. The relevant evidence was limited and inconclusive and thus insufficient to make a determination.
Concur — Ellerin, J.P., Nardelli, Williams and Mazzarelli, JJ.