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Rivercross Tenants' Corp. v. New York State Division of Housing and Community Renewal

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


February 25, 2010

IN RE RIVERCROSS TENANTS' CORP.,
PETITIONER-APPELLANT,
v.
NEW YORK STATE DIVISION OF HOUSING AND COMMUNITY RENEWAL, RESPONDENT-RESPONDENT.

Judgment, Supreme Court, New York County (O. Peter Sherwood, J.), entered December 12, 2008, denying the petition seeking, inter alia, to annul the determination of respondent New York State Division of Housing and Community Renewal (DHCR), dated July 16, 2008, which unilaterally increased the maximum surcharge schedule for over-income tenants at petitioner Rivercross to 30% and increased the maintenance charges by 2.1%, and dismissing the proceeding, unanimously reversed, on the law, without costs, and the petition granted to the extent of annulling DHCR's determination and remanding the matter for further proceedings.

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.

Gonzalez, P.J., Mazzarelli, Nardelli, Acosta, Abdus-Salaam, JJ.

Index 111433/08

No deference should be accorded DHCR's determination unilaterally imposing an increased surcharge schedule upon Rivercross, where the language of the Private Housing Finance Law is clear that the schedule of surcharges is to be promulgated by the housing company "with the approval" of DHCR (Private Housing Finance Law § 31[3]; see Vink v New York State Div. of Hous. & Community Renewal, 285 AD2d 203 [2001]; see also Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451, 459 [1980]).

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

20100225

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