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IN RE: 338 WEST 46TH STREET REALTY, LLC, Petitioner–Appellant, v. The STATE OF New York State DIVISION OF HOUSING AND COMMUNITY RENEWAL, et al., Respondents–Respondents, George Morton, et al., Respondents–Intervenors–Respondents.
Order and judgment (one paper), Supreme Court, New York County (Emily Jane Goodman, J.), entered June 11, 2010, which to the extent appealed from as limited by the briefs, denied the petition to annul respondents' determination, dated March 27, 2009, denying petitioner's applications for an administrative determination of the legal regulated rents for five apartments, and dismissing the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.
Respondents' determination had a rational basis, given the pendency of a Civil Court proceeding involving the rent overcharges issue (see Matter of Pell v. Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 N.Y.2d 222, 231 [1974] ). Under all of the relevant circumstances, the doctrine of “primary jurisdiction” (Sohn v. Calderon, 78 N.Y.2d 755 [1991] ) does not support petitioner's argument that respondent agency abused its discretion in determining that it was appropriate for the Civil Court to resolve the rent overcharge issue, especially since the agency made the determination, not the court.
We have considered petitioner's remaining arguments and find them unavailing.
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Decided: December 06, 2012
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