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

Matter of Matter of 338 W. 46th St. Realty, LLC v State of New York State Div. of Hous. & Community Renewal 2012 NY Slip Op 08414 Decided on December 6, 2012 Appellate Division, First Department 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, Román, Clark, JJ.
8725 106941/09

[*1]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.




Daniel R. Miller, Brooklyn, for appellant.
Gary R. Connor, New York (Aida P. Reyes of counsel), for The
State of New York State Division of Housing and Community
Renewal and Leslie Torres, respondents.
Bierman & Palitz, LLP, New York (Mark H. Bierman of
counsel), for George Morton, Robyn Davis, Edward Eisele, Robert
Leonardi and Ute Schmid, respondents.

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 [*2]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