Opinion
11780 Index 101186/16
07-09-2020
In re Elizabeth WAGES, etc., Petitioner–Appellant, v. State of New York, STATE DIVISION OF HOUSING AND COMMUNITY RENEWAL, Respondent–Respondent.
Robert A. Katz, New York, for appellant. Mark F. Palomino, New York (Lauren K. Lipnick of counsel), for respondent.
Robert A. Katz, New York, for appellant.
Mark F. Palomino, New York (Lauren K. Lipnick of counsel), for respondent.
Acosta, P.J., Manzanet–Daniels, Kapnick, Singh, Gonza´lez,JJ.
Judgment, Supreme Court, New York County (Lucy Billings, J.), entered March 14, 2018, denying the petition to annul a determination of respondent (DHCR), dated May 27, 2016, which denied the petition for administrative review (PAR) of an order of the Rent Administrator (RA) granting a rent increase based on major capital improvements (MCI) to the owner's building, and dismissing the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.
The court correctly concluded that DHCR's grant of the owner's MCI application based on new carpeting throughout the building has a rational basis in the record and is not arbitrary and capricious (see generally Matter of 900 W. End Ave. Tenants Assn. v. New York State Div. of Hous. & Community Renewal, 53 A.D.3d 436, 438, 862 N.Y.S.2d 38 [1st Dept. 2008] ; Matter of West Vil. Assoc. v. Division of Hous. & Community Renewal, 277 A.D.2d 111, 112, 717 N.Y.S.2d 31 [1st Dept. 2000] ). Petitioner did not claim in the verified petition that the application for the carpet installation failed to satisfy any of the criteria set forth in 9 NYCRR 2522.4(a)(2)(i). DHCR also rationally concluded that the owner's misstatement in the application concerning the age of the replaced carpet did not warrant a denial of the application in this case.
The court properly declined to consider petitioner's remaining arguments. Petitioner did not claim in the verified petition that carpeting cannot qualify as an MCI, and improperly raised that issue in reply (see Matter of McClave v. Port Auth. of N.Y. & N.J., 134 A.D.3d 435, 436 [1st Dept. 2015] ). Petitioner did not argue before either the RA or in the PAR that the MCI application should have been denied because the owner did not obtain a waiver of the useful life requirement as set forth in 9 NYCRR 2522.4(a)(2)(i)(d)-(e) (see Matter of Basnight v. New York City Hous. Auth., 132 A.D.3d 549, 550, 17 N.Y.S.3d 861 [1st Dept. 2015] ). Petitioner did not argue before the RA that the MCI application should have been denied because of the owner's alleged history of misconduct and because the owner allegedly caused damage to the previous carpeting, and did not establish why it could not have done so (see 9 NYCRR 2529.6 ; Matter of Croes Nest Realty, LP v. New York State Div. of Hous. & Community Renewal, 92 A.D.3d 402, 403, 938 N.Y.S.2d 42 [1st Dept. 2012] ; Matter of Chelsea Inn Corp. v. New York State Div. of Hous. & Community Renewal, 306 A.D.2d 16, 759 N.Y.S.2d 659 [1st Dept. 2003] ).
We have considered petitioner's remaining arguments and find them unavailing.