Matter of Broadway Bretton, Inc. v. New York State Div. of Hous. & Community Renewal , 146 A.D.3d 406 ( 2017 )

Matter of Broadway Bretton, Inc. v New York State Div. of Hous. & Community Renewal (2017 NY Slip Op 00004)

Matter of Broadway Bretton, Inc. v New York State Div. of Hous. & Community Renewal

2017 NY Slip Op 00004

Decided on January 3, 2017

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 January 3, 2017
Friedman, J.P., Sweeny, Saxe, Kapnick, JJ.

2338 100222/14

[*1]In re Broadway Bretton, Inc., Petitioner-Appellant,

v

New York State Division of Housing and Community Renewal, Respondent-Respondent, Bretton Hall Tenants Association, Respondent-Intervenor-Respondent.

Seyfarth Shaw LLP, New York (Jerry A. Montag of counsel), for appellant.

Mark F. Palomino, New York (Jack Kuttner of counsel), for New York State Division of Housing and Community Renewal, respondent.

Himmelstein, McConnell, Gribben, Donoghue & Joseph LLP, New York (David Hershey-Webb of counsel), for Bretton Hall Tenants Association, respondent.

Judgment, Supreme Court, New York County (Peter H. Moulton, J.), entered December 22, 2014, denying the petition to annul a determination of respondent New York State Division of Housing and Community Renewal (DHCR), dated December 27, 2013, which affirmed an order of the DHCR Rent Administrator denying petitioner owner's application for a major capital improvement (MCI) rent increase, and dismissing the proceeding brought pursuant to CPLR article 78, unanimously reversed, without costs, on the law and in the exercise of discretion, the judgment vacated, respondent's determination annulled, the petition granted, and the matter remanded to DHCR for further proceedings.

Under the circumstances of this case, where DHCR concedes that its investigator erred, and petitioner submitted the requested architect's report, albeit tardily, it was arbitrary for DHCR to deny the MCI application (see 305 W. 18 Assoc. v New York State Div. of Hous. & Community Renewal , 158 Ad2d 377 [1st Dept 1990]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JANUARY 3, 2017

CLERK