Opinion
Appeal No. 14787 Index No. 161481/19Case No. 2021-01140
12-07-2021
In the Matter of Susan Zucker et al., Petitioners-Appellants, v. State of New York Division of Housing and Community Renewal et al., Respondents-Respondents. Appeal No. 14787 No. 2021-01140
Eugene B. Nathanson, New York, for appellants. Mark F. Palomino, New York (Robert Ambaras of counsel), for State of New York Division of Housing and Community Renewal, respondent. Kim S. Winn & Associates LLP, Brooklyn (Kim S. Winn of counsel), for Tremada Holdings LLC and West 10th Street Series/Bronstein Properties, respondents.
Eugene B. Nathanson, New York, for appellants.
Mark F. Palomino, New York (Robert Ambaras of counsel), for State of New York Division of Housing and Community Renewal, respondent.
Kim S. Winn & Associates LLP, Brooklyn (Kim S. Winn of counsel), for Tremada Holdings LLC and West 10th Street Series/Bronstein Properties, respondents.
Before: Acosta, P.J., Gische, Webber, Friedman, Kennedy, JJ.
Judgment, Supreme Court, New York County (Lynn Kotler, J.), entered on or about September 11, 2020, denying the petition to annul a determination of respondent State of New York Division of Housing and Community Renewal (DHCR), dated September 27, 2019, which granted respondent Tremada Holdings LLC-West 10th Street Series/Bronstein Properties' application to eliminate petitioner rent-stabilized tenants' access to the roof garden of the building located at 277 West 10th Street and ordered a permanent rent decrease to compensate the tenants for the loss of rooftop access, and dismissing the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.
Petitioners failed to establish that DHCR's determination was irrational or arbitrary and capricious (see Matter of 333 E. 49th Assoc., L.P. v New York State Div. of Hous. & Community Renewal, Off. of Rent Admin., 40 A.D.3d 516 [1st Dept 2007], affd 9 N.Y.3d 982 [2007]). When an owner applies to DHCR to reduce or eliminate required services under Rent Stabilization Code (9 NYCRR) § 2522.4 (d) or (e), DHCR "has broad discretion in evaluating pertinent factual data and inferences to be drawn therefrom" (id. at 516).
DHCR's approval of Tremada's application based on its interpretation of its own regulations with respect to whether the decrease in services was inconsistent with the Rent Stabilization Code is entitled to deference (see Matter of Leonard St. Props. Group, Ltd. v New York State Div. of Hous. & Community Renewal, 178 A.D.3d 92, 103 [1st Dept 2019]).