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In Re 338 West 46th Street Realty, LLC v. the State of New York State Division of Housing and Community Renewal

New York Supreme and/or Appellate Courts Appellate Division, First Department


December 6, 2012

IN RE 338 WEST 46TH STREET REALTY, LLC,
PETITIONER-APPELLANT,
v.
THE STATE OF NEW YORK STATE DIVISION OF HOUSING AND COMMUNITY RENEWAL, ET AL.,
RESPONDENTS-RESPONDENTS, GEORGE MORTON, ET AL., RESPONDENTS-INTERVENORS-RESPONDENTS.

Matter of Matter of 338 W. 46th St. Realty, LLC v State of New York State Div. of Hous. & Community Renewal

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.

Decided on December 6, 2012 Gonzalez, P.J., Sweeny, Richter, Roman, Clark, JJ.

Order and judgment (one paper), Supreme Court, New York County (Emily Jane Goodman, J.), entered June 11, 2010, which to the extent appealed from as limited by the briefs, denied the petition to annul respondents' determination, dated March 27, 2009, denying petitioner's applications for an administrative determination of the legal regulated rents for five apartments, and dismissing the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.

Respondents' determination had a rational basis, given the pendency of a Civil Court proceeding involving the rent overcharges issue (see Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 231 [1974]). Under all of the relevant circumstances, the doctrine of "primary jurisdiction" (Sohn v Calderon, 78 NY2d 755 [1991]) does not support petitioner's argument that respondent agency abused its discretion in determining that it was appropriate for the Civil Court to resolve the rent overcharge issue, especially since the agency made the determination, not the court.

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

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

ENTERED: DECEMBER 6, 2012

CLERK

20121206

© 1992-2012 VersusLaw Inc.



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