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

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


April 22, 2010

IN RE ZACHARY M. BERMAN, PETITIONER-APPELLANT,
v.
STATE OF NEW YORK DIVISION OF HOUSING AND COMMUNITY RENEWAL, RESPONDENT-RESPONDENT.

Judgment, Supreme Court, Bronx County (Howard R. Silver J.), entered February 2, 2009, denying the petition seeking, inter alia, to annul respondent New York State Division of Housing and Community Renewal's (DHCR) denial of petitioner's rent overcharge complaint, and dismissing the proceeding brought pursuant to CPLR article 78, 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.

Gonzalez, P.J., Saxe, Nardelli, McGuire, Moskowitz, JJ.

260535/07

DHCR's determination was not arbitrary and capricious, as it correctly determined that because petitioner's lease was not a renewal lease, the legal regulated rent was $1,600 per month, that is, the rent charged on the base date, which was four years prior to the filing of the rent overcharge complaint on December 1, 2006 (see Rent Stablization Law of 1969 [Administrative Code of City of NY] § 26-516[a][2]; Rent Stablization Code [9 NYCRR] § 2526.1[a][3][i]; Matter of Ellis v Division of Hous. & Community Renewal of State of N.Y., 45 AD3d 594, 595 [2007]; Zafra v Pilkes, 245 AD2d 218, 219 [1997]). DHCR properly examined the records predating the overcharge claim for four years, going back to December 1, 2002, and based upon those records, found that petitioner had not been overcharged.

We have considered petitioner's remaining contentions, and find them unavailing.

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

20100422

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