Matter of Second & Third Ave. LLC v. New York State Div. of Hous. & Community Renewal , 18 N.Y.S.3d 850 ( 2015 )

Matter of Second & Third Ave. LLC v New York State Div. of Hous. & Community Renewal (2015 NY Slip Op 08087)

Matter of Second & Third Ave. LLC v New York State Div. of Hous. & Community Renewal

2015 NY Slip Op 08087

Decided on November 10, 2015

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 November 10, 2015
Mazzarelli, J.P., Renwick, Saxe, Moskowitz, JJ.

16080 100182/14

[*1] In re Second and Third Avenue LLC, Petitioner-Appellant,

v

New York State Division of Housing and Community Renewal, Respondent-Respondent, Adolfo Velasquez, Intervenor-Respondent.

Borah, Goldstein, Altschuler, Nahins & Goidel, P.C., New York (Paul N. Gruber of counsel), for appellant.

Adam H. Schuman, New York (Dawn Ivy Schindelman of counsel), for New York State Division of Housing and Community Renewal, respondent.

Fishman & Mallon, LLP, New York (Susan K. Crumiller of counsel), for Adolfo Velasquez, respondent.

Judgment, Supreme Court, New York County (Carol E. Huff, J.), entered November 7, 2014, denying the petition to annul the determination of respondent (DHCR), dated December 18, 2013, which limited petitioner's rent increase for the subject apartment, and dismissing the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.

DHCR's determination that the rent increase resulting from petitioner's first-time painting of the apartment (see 9 NYCRR 2202.4[a][1], [2]) should be based on the highest estimate submitted by the tenant ($2,940), rather than the invoice submitted by petitioner ($13,750), is rational and is entitled to great deference (Matter of Partnership 92 LP & Bldg. Mgt. Co., Inc. v State of N.Y. Div. of Hous. & Community Renewal, 46 AD3d 425, 428-429 [1st Dept 2007], affd 11 NY3d 859 [2008]). The equities do not support the greater increase proposed by petitioner, since the actual cost of the project is in dispute, and the cost alleged by petitioner, for which it did not provide an itemized invoice or proof of payment other than a handwritten notation of a "cash" payment, would increase the rent by 130% (9 NYCRR 2202.22[a], [b][6]; see Matter of W 54-7 LLC v New York State Div. of Hous. & Community Renewal, 39 AD3d 312 [1st Dept 2007]).

We have considered petitioner's remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 10, 2015

CLERK