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Power v. New York State Division of Housing and Community Renewal

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


April 21, 2009

IN RE JAMES A. POWER, ET AL., PETITIONERS-APPELLANTS,
v.
NEW YORK STATE DIVISION OF HOUSING AND COMMUNITY RENEWAL, RESPONDENT-RESPONDENT.

Order, Supreme Court, New York County (Charles Tejada, J.), entered March 7, 2007, which denied the petition seeking a writ of prohibition preventing DHCR from processing the owner's 2004 luxury deregulation proceeding and from demanding or verifying petitioner-roommate Hastings' 2002 tax information in connection therewith, and granted DHCR's cross motion to dismiss, unanimously affirmed, without costs.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Andrias J.P., Nardelli, McGuire, Acosta, DeGrasse, JJ.

105760/06

A writ of prohibition will issue where there is a clear legal right and the body or officer "acts or threatens to act without jurisdiction in a matter over which it has no power over the subject matter or where it exceeds its authorized powers in a proceeding over which it has jurisdiction" (Forte v Supreme Court of New York, 48 NY2d 179, 183 [1979], quoting Dondi v Jones, 40 NY2d 8, 13 [1976]) and, in the court's discretion, the remedy is warranted (see Town of Huntington v State Div. of Human Rights, 82 NY2d 783, 786 [1993]; Schumer v Holtzman, 60 NY2d 46, 51 [1983]).

There can be no dispute that DHCR has jurisdiction to adjudicate luxury deregulation petitions and to request that the Department of Taxation and Finance verify the total annual income of all persons residing in housing accommodations as their primary residence in connection therewith (Tax Law § 171-b(3)(b); Matter of Doyle v Calogero, 52 AD3d 252 [2008]; A.J. Clarke Real Estate Corp. v New York State Div. of Hous. and Community Renewal, 307 AD2d 841 [2003]). Furthermore, in Doyle, this Court held that in determining household income for purposes of luxury deregulation, DHCR may rationally take into consideration the income of occupants who reside in the apartment on the date the income certification form (ICF) is served, even if the occupant did not occupy the apartment during the two years preceding service thereof.

Accordingly, the writ of prohibition was providently denied. The petition was correctly dismissed for failure to exhaust administrative remedies (see Hawco v State Div. Of Hous. & Community Renewal, 225 AD2d 469 [1996]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20090421

© 1992-2009 VersusLaw Inc.



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