E.G.A. Associates Inc. v. New York State Division of Housing & Community Renewal

Oct 29, 1996
Versions:232 A.D.2d 302
648 N.Y.S.2d 589
1996 N.Y. App. Div. LEXIS 10549

—Order, Supreme Court, New York County (Richard Lowe, III, J.), entered July 7, 1995, which dismissed the petition brought pursuant to CPLR article 78 to annul so much of an order of respondent Division of Housing and Community Renewal as affirmed an order establishing the initial fair market rent for the subject apartment, and order of the same court and Justice entered April 15, 1996, which insofar as appealable, denied petitioner’s motion to renew, unanimously affirmed, without costs.

The IAS Court properly found DHCR’s determination adjusting the initial legal regulated rent for the subject apartment based solely on the applicable special rent guideline order was not arbitrary or capricious and was supported by a rational basis since it was made only after petitioner failed to submit pertinent rental data for comparable apartments (see, Matter of Pell v Board of Educ., 34 NY2d 222, 231). DHCR also properly determined that the tenant’s Fair Market Rent Appeal was timely filed, because defects in landlord’s 1981 DC-2 Notice rendered that notice ineffective. Nor was petitioner denied due process as it was given adequate notice and an opportunity to be heard (see, Mullane v Central Hanover Trust Co., 339 US 306). Claims regarding the RR-1 Notice not raised in the administrative proceeding can not be raised for the first time in the course of this judicial proceeding (see, Matter of Rozmae Realty v State Div. of Hous. & Community Renewal, 160 AD2d 343, lv denied 76 NY2d 712). Finally, the Commissioner properly disallowed rent increases for alleged improvements based upon evidence submitted for the first time during the Petition for Administrative Review as petitioner had been afforded notice and ample opportunity to submit comparability data and offered no reasonable excuse for failure to do so (see, Matter of 985 Fifth Ave. v State Div. of Hous. & Community Renewal, 171 AD2d 572, 574-575, lv denied 78 NY2d 861). Concur—Murphy, P. J., Sullivan, Rubin, Ross and Williams, JJ.