Matter of Rivercross Tenants' Corp. v New York State Div. of Hous. & Community Renewal

Matter of Rivercross Tenants' Corp. v New York State Div. of Hous. & Community Renewal 2010 NY Slip Op 01573 [70 AD3d 577] February 25, 2010 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, March 31, 2010

In the Matter of Rivercross Tenants' Corp., Appellant,
v
New York State Division of Housing and Community Renewal, Respondent.

—[*1] Warshaw Burstein Cohen Schlesinger & Kuh, LLP, New York (Bruce H. Wiener of counsel), for appellant.

Gary R. Connor, New York (Sheldon D. Melnitsky of counsel), for respondent.

Judgment, Supreme Court, New York County (O. Peter Sherwood, J.), entered December 12, 2008, denying the petition seeking, inter alia, to annul the determination of respondent New York State Division of Housing and Community Renewal (DHCR), dated July 16, 2008, which unilaterally increased the maximum surcharge schedule for over-income tenants at petitioner Rivercross to 30% and increased the maintenance charges by 2.1%, and dismissing the proceeding, unanimously reversed, on the law, without costs, and the petition granted to the extent of annulling DHCR's determination and remanding the matter for further proceedings.

No deference should be accorded DHCR's determination unilaterally imposing an increased surcharge schedule upon Rivercross, where the language of the Private Housing Finance Law is clear that the schedule of surcharges is to be promulgated by the housing company "with the approval" of DHCR (Private Housing Finance Law § 31 [3]; see Vink v New York State Div. of Hous. & Community Renewal, 285 AD2d 203 [2001]; see also Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451, 459 [1980]). Concur—Gonzalez, P.J., Mazzarelli, Nardelli, Acosta and Abdus-Salaam, JJ. [Prior Case History: 2008 NY Slip Op 33153(U).]