Schoberle v. New York State Division of Housing & Community Renewal

Judgment, Supreme Court, New York County (Nicholas Figueroa, J.), entered December 23, 2003, denying the petition and dismissing this proceeding brought pursuant to CPLR article 78 seeking to annul a Division of Housing and Community Renewal (DHCR) order, dated January 17, 2003, which had denied a petition for administrative review and affirmed a Rent Administrator’s order rejecting a request for rent reduction, unanimously affirmed, without costs.

The determination that removal of storage space by intervenor-respondent was de minimis and did not support a rent decrease is in full accord with applicable law, was neither arbitrary nor capricious, and had a rational basis in the record (see Fresh Meadows Assoc. v Conciliation & Appeals Bd., 88 Misc 2d 1003 [1976], affd 55 AD2d 559 [1976], affd 42 NY2d 925 [1977]; Matter of Pell v Board of Educ., 34 NY2d 222, 230-231 [1974]). The Deputy Commissioner did not apply an unconstitutional ex post facto standard in making its de minimis determination, since the policy was neither penal nor criminal in nature (see Town of Hempstead v Goldblatt, 19 Misc 2d 176, 182 [1959], affd 9 AD2d 941 [1959], affd 9 NY2d 101 [1961], affd 369 US 590 [1962]). Furthermore, the agency’s consideration of the results of its request of tenants for evidence of a lease provision and/or storage boxes was consistent with the remand order of this Court in Matter of Hakim v Division of Hous. & Community Renewal (273 AD2d 3 [2000], appeal dismissed 95 NY2d 887 [2000]). Nor did the 1995 DHCR Memorandum constitute a change in policy, as opposed to simply a written instruction providing guidelines to a policy already in use. Concur—Friedman, J.P., Marlow, Nardelli, Sweeny and Catterson, JJ.