171 WEST 57TH STREET OPERATING LLC v. Walter Maibaum, et al., Intervenors-Respondents-Respondents. (2007)

Judgment, Supreme Court, New York County (Rosalyn Richter, J.), entered June 29, 2005, which denied the petition and dismissed the proceeding, brought pursuant to CPLR article 78, seeking to annul the determination of respondent New York State Division of Housing and Community Renewal, dated September 15, 2004, denying administrative review of an order of the Rent Administrator denying luxury decontrol, unanimously affirmed, without costs.

The article 78 court found that, since the agency determined in 2002 that the tenants' 2001 income did not exceed the $175,000 threshold and since the 2003 luxury decontrol petition turned in part on whether the tenants' 2001 income exceeded the threshold (see Administrative Code of City of N.Y. § 26-504.1), the 2002 determination was dispositive of the 2003 petition (see Matter of Broadway 95th St., LLC v. State Div. of Hous. & Community Renewal, 297 A.D.2d 616, 747 N.Y.S.2d 226 [2002] ).   Petitioner landlord failed to controvert this in its main brief, and we decline to reach the arguments made on this point for the first time in the reply brief.