IN RE: Robert LOWINGER (2018)

Order and judgment (one paper), Supreme Court, New York County (Joan B. Lobis, J.), entered January 15, 2016, inter alia, denying the petition to annul the order of respondent New York State Division of Housing and Community Renewal (DHCR), issued September 8, 2014, which upheld the denial of petitioner's rent overcharge complaint, and dismissing the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.

DHCR's determination that the deregulation of petitioner's apartment, which preceded his tenancy, was not fraudulent is not arbitrary and capricious and has a rational basis (see generally Flacke v. Onondaga Landfill Sys., 69 N.Y.2d 355, 363, 514 N.Y.S.2d 689, 507 N.E.2d 282 [1987] ).  The determination was based upon the finding that the apartment was subject to vacancy and individual apartment improvement increases, which was supported by a November 2006 agreement, a counter-signed proposal, canceled checks, an invoice, petitioner's February 2007 punch list of items of work remaining to be performed before the commencement of his tenancy, and petitioner's execution of a lease (see Matter of Hanjorgiris v. Lynch, 298 A.D.2d 251, 748 N.Y.S.2d 730 [1st Dept. 2002] ).  Petitioner's vague and conclusory claim that the work was not performed well and cost less than claimed by the former owner is insufficient to compel a contrary finding (id.).  The allegation of a fraudulent scheme to deregulate, without more, does not trigger a duty to investigate the claim (see Matter of Boyd v. New York State Div. of Hous. & Community Renewal, 23 N.Y.3d 999, 992 N.Y.S.2d 764, 16 N.E.3d 1243 [2014] ).

Petitioner's argument that the apartment is subject to rent stabilization due to Rent Stabilization Code [9 NYCRR] § 26–504.2 is not properly before us because it was never raised in the administrative proceeding (see Matter of Corrigan v. New York State Off. of Children & Family Servs., 28 N.Y.3d 636, 643, 49 N.Y.S.3d 46, 71 N.E.3d 537 [2017] [“(j)udicial review of administrative determinations pursuant to CPLR article 78 is limited to questions of law, and (u)npreserved issues are not issues of law”] [internal quotation marks omitted] ).  We have no authority to reach this unpreserved issue in the interest of justice (see Green v. New York City Police Dept., 34 A.D.3d 262, 263, 825 N.Y.S.2d 9 [1st Dept. 2006] ).¹

FOOTNOTES

1.   We also note that petitioner's argument is unavailing in light of the Court of Appeals decision in Altman v. 285 W. Fourth, LLC, 31 N.Y.3d 178, 75 N.Y.S.3d 465, 99 N.E.3d 858, 2018 N.Y. Slip Op. 02829 [2018] ).