Matter of Executive Towers at Lido, LLC v New York State Div. of Hous. & Community Renewal

Matter of Executive Towers at Lido, LLC v New York State Div. of Hous. & Community Renewal 2010 NY Slip Op 00511 [69 AD3d 852] January 19, 2010 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, March 10, 2010

In the Matter of Executive Towers at Lido, LLC, et al., Appellants,
v
New York State Division of Housing and Community Renewal et al., Respondents.

—[*1] Herzfeld & Rubin, P.C., New York, N.Y. (Herbert Rubin of counsel), and Borah, Goldstein, Altschuler, Nahins & Goidel, P.C., New York, N.Y., for appellants (one brief filed).

Gary R. Connor, New York, N.Y., for respondent New York State Division of Housing and Community Renewal.

Lawrence Alexander, New York, N.Y., for respondents Long Beach Tenants Coalition and Robert Rychlowski.

In a proceeding pursuant to CPLR article 78 to review a determination of the New York State Division of Housing and Community Renewal dated February 19, 2008, which denied a petition for administrative review and confirmed a determination of the Rent Administrator dated January 24, 2003, denying the petitioners' applications to adjust certain initial legal regulated rents pursuant to Emergency Tenant Protection Regulations (9 NYCRR) § 2502.3 (b) based on the presence of unique or peculiar circumstances, the petitioners appeal from a judgment of the Supreme Court, Nassau County (Iannaci, J.), entered August 20, 2008, which denied the petition and, in effect, dismissed the proceeding.

Ordered that the judgment is affirmed, with one bill of costs to the respondents appearing separately and filing separate briefs.

The determination of the New York State Division of Housing and Community Renewal denying a petition for administrative review and confirming a determination of the Rent Administrator denying the petitioners' applications to adjust certain initial legal regulated rents pursuant to Emergency Tenant Protection Regulations § 2502.3 (b) based on the presence of unique or peculiar circumstances had a rational basis and was not arbitrary or capricious. The petitioners failed to meet their burden of proving, inter alia, that the rents in their apartment buildings differed substantially from the rents generally prevailing in the same area for substantially similar housing accommodations. Therefore, the determination of the Rent Administrator was properly confirmed (see CPLR 7803 [3]; Emergency Tenant Protection Act of 1974 § 9 [McKinney's Uncons Laws of NY § 8629 (a) (L 1974, ch 576, sec 4, § 6, as amended)]; Matter of Rowe v Calogero, 56 AD3d 567 [2008]; Matter of Delillo v New York State Div. of Hous. & Community Renewal, 45 AD3d 682, 683 [2007]; Harding v Calogero, 45 AD3d 363 [2007]; Matter of Melendez v New York State Div. of Hous. & Community [*2]Renewal, 304 AD2d 580; Matter of Marciano v Roldan, 294 AD2d 440 [2002]).

The petitioners' remaining contentions are without merit. Mastro, J.P., Fisher, Angiolillo and Leventhal, JJ., concur.