Barklee Realty Co. v. New York State Division of Housing & Community Renewal

— Order and judgment (one paper), Supreme Court, New York County (Eugene R. Wolin, J.), entered October 27, 1986, dismissing the petition, unanimously reversed, on the law and on the facts and in the exercise of discretion, the petition reinstated and the matter remanded for further proceedings without costs or disbursements.

The petition seeks judicial review of a "deemed denial” by the administrative agency, respondent Division of Housing and Community Renewal. The motion court properly found that the relief requested was in the nature of mandamus and that such review should await disposition of petitioner’s application for administrative review, which was still pending. Thus, the court properly dismissed the petition. Subsequent to the entry of the order and judgment, however, on November 5, 1987, the petition for administrative review was denied. Thus, the administrative review of this matter is now compíete. Rather than affirm the dismissal of the petition and relegate petitioner to the commencement of a new CPLR article 78 proceeding, we reverse and remand the petition for consideration on the merits as a challenge to the rationality of the agency’s final determination. As we read the petition, which exhaustively sets forth the administrative background of this matter, it may be viewed as a challenge in the nature of certiorari. Concur — Kupferman, J. P., Sullivan, Ross, Milonas and Wallach, JJ.