Collins, Dobkin & Miller, LLP, New York, NY (Timothy L.
Collins of counsel), for appellant.
F. Palomino, New York, NY (Jack Kuttner of counsel), for
respondent New York State Division of Housing and Community
Tennenbaum Berger & Shivers, LLP, Brooklyn, NY (David M.
Berger and Michael Cohen of counsel), for respondent Zelig
& Zelig, LLC.
C. DILLON, J.P., SYLVIA O. HINDS-RADIX, HECTOR D. LASALLE,
FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDER
proceeding pursuant to CPLR article 78 to review a
determination of the Deputy Commissioner of the New York
State Division of Housing and Community Renewal Office of
Rent Administration, dated October 20, 2014, which denied a
request for administrative review and confirmed a Rent
Administrator's determination, inter alia, that the
initial legal registered rent for the subject apartment was
$1, 700 per month, the petitioner appeals from a judgment of
the Supreme Court, Kings County (Rothenberg, J.), dated
September 16, 2015, which denied the petition and dismissed
the proceeding on the merits.
that the judgment is affirmed, with one bill of costs.
issue here is the petitioner's legal rent for a
April 2007, the petitioner took possession of the subject
apartment, 1L, which was vacant, pursuant to a one-year lease
dated April 1, 2007, at a stated monthly rent of $2, 000. The
lease further provided that the landlord and the tenant
agreed to a reduction of $300 in the monthly rent, and that
the "total rent due each month is $1, 700.00."
According to the petition, the monthly rent of $2, 000 was
"illusory" and inserted into the lease by the
landlord because vacant apartments rented for $2, 000 per
month or more are not subject to rent stabilization
(see New York City Administrative Code §
subject apartment had been registered with the New York State
Division of Housing and Community Renewal (hereinafter DHCR)
as exempt from rent regulation because it was occupied by the
owner or the owner's employee until at least April 1,
2002. The owner had registered the apartment as leased to
another tenant for $1, 480 per month from April 1, 2002,
until March 31, 2004.
December 2006, the building was purchased by a new owner and
re-conveyed to the current owner, Zelig & Zelig, LLC
(hereinafter Zelig). Zelig corrected the rent record to
reflect that the tenant originally registered as occupying
the subject apartment was actually a tenant of apartment 2L,
and that the subject apartment had been vacant for more than
four years when the petitioner moved in.
March 31, 2011, the petitioner filed a rent overcharge
complaint with the DHCR, claiming that the rent of $1, 700
was unlawful, asserting that her apartment was subject to
rent regulation, and alleging fraud. In an order dated
December 13, 2012, the Rent Administrator granted her
application to the extent of rejecting the landlord's
claim that $2, 000 was the legal rent and ruling that the
subject apartment was rent stabilized. However, the Rent
Administrator ruled that the petitioner was not overcharged,
and that the initial legal registered rent was $1, 700 per
month because the apartment was vacant on the "base
date" of March 31, 2007, four years prior to the filing
of the rent overcharge complaint (see 9 NYCRR
2520.6[f]), and the rent agreed upon by the petitioner and
the owner at that time was $1, 700 per month, citing 9 NYCRR
former 2526.1(a)(3)(iii). The Rent Administrator also
rejected the fraud allegation. That determination was
affirmed on administrative appeal.
petitioner commenced this proceeding pursuant to CPLR article
78 challenging that determination, alleging that the claim
that the apartment was vacant prior to her tenancy was false,
as part of a scheme to defraud. In the judgment appealed
from, the Supreme Court dismissed the proceeding on the
merits. The petitioner appeals.
review of an administrative determination that was not made
after a quasi-judicial hearing is limited to whether the
determination was made in violation of lawful procedure, was
affected by an error of law, or was arbitrary and capricious
or an abuse of discretion (see CPLR 7803;
Matter of Riverside Tenants Assn. v New York State Div.
of Hous. & Community Renewal, 133 A.D.3d 764, 766).
The court may not substitute its judgment for that of the
DHCR (see Matter of 85 E. Parkway Corp. v New York State
Div. of Hous. & Community Renewal, 297 A.D.2d 675,
676). "The DHCR's interpretation of the statutes and
regulations it administers, if reasonable, must be
upheld" (Matter of 85 E. Parkway Corp. v New York
State Div. of Hous. & Community Renewal, 297 A.D.2d
at 676 ; see Matter of Terrace Ct., LLC v New York State
Div. of Hous. & Community Renewal, 18 N.Y.3d 446,
454; Matter of Riverside Tenants Assn. v New York State
Div. of Hous. & Community Renewal, 133 A.D.3d at
to 9 NYCRR former 2526.1(a)(3)(iii), when an apartment is
vacant on the base date, the legal rent is the first rent
agreed upon by the owner and the first rent-stabilized tenant
taking occupancy after the vacancy. The petitioner contends
that this provision does not apply here, and that her initial
rent should have been lower than $1, 700, because Zelig tried
to treat the petitioner as a non-rent-stabilized tenant by
providing in the lease for a monthly rent of $2, 000.
Contrary to this contention, under the terms of the lease,
the parties agreed to an actual rent of $1, 700, which is a
lawful stabilized rent. Moreover, as the Supreme Court
correctly noted, Gordon v 305 Riverside Corp. (93
A.D.3d 590), cited by the petitioner, does not require a