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In re 445 East 80th Street Tenants Association

Supreme Court of New York, First Department

June 11, 2013

In re 445 East 80th Street Tenants Association, etc., Petitioner-Appellant,
v.
New York State Division of Housing and Community Renewal, Respondent-Respondent, Clermont York Associates, Intervenor-Respondent-Respondent.

Collins, Dobkin & Miller, LLP, New York (Timothy L. Collins of counsel), for appellant.

Gary R. Connor, New York (Kathleen Lamar of counsel), for New York State Division of Housing and Community Renewal, respondent.

Horing Welikson & Rosen P.C., Williston Park (Niles C. Welikson of counsel), for Clermont York Associates, respondent.

Mazzarelli, J.P., Sweeny, Moskowitz, Manzanet-Daniels, Gische, JJ.

Judgment, Supreme Court, New York County (Peter H. Moulton, J.), entered April 12, 2012, denying the petition to annul the determination of respondent New York State Division of Housing and Community Renewal (DHCR), dated July 14, 2011, which granted intervenor-respondent owner's application for a major capital improvement (MCI) rent increase based upon the installation of new windows, and dismissing the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.

DHCR's finding, that other than a few apartments where defective window installations were found, the remaining apartments were subject to an MCI rent increase based on the window installations, was rational (see Matter of Ansonia Residents Assn. v New York State Div. of Hous. & Community Renewal, 75 N.Y.2d 206, 213-214 [1989]). The record contains no objective evidence of pervasive defects and thus no basis to deny the rent increase (see Matter of Langham Mansions, LLC v New York State Div. of Hous. & Community Renewal, 76 A.D.3d 855, 858 [1st Dept 2010]). Moreover, DHCR providently exercised its discretion in inspecting only those apartments identified by petitioner in the earlier rounds of testing ...


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