IN RE: 495 ESTATES (2023)

Judgment (denominated an order), Supreme Court, New York County (Alexander Tisch, J.), entered March 23, 2022, denying the petition brought pursuant to CPLR article 78 to annul the determination of respondent New York State Division of Housing and Community Renewal (DHCR), dated November 12, 2020, which denied the owner's petition for administrative review and affirmed the Rent Administrator's order granting the tenant's application for a rent reduction based on the placement of an exposed gas riser in the tenant's living room, unanimously affirmed, without costs.

DHCR's determination that the decrease in living space resulting from the installation of a new exposed gas riser, previously installed inside a wall, in the tenant's living room was not de minimis and warranted a rent reduction was not arbitrary and capricious (see CPLR 7803[3];  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, 356 N.Y.S.2d 833, 313 N.E.2d 321 [1974]).  DHCR properly relied on photographs of the riser and the inspector's report finding that the pipe obstructed the living area (see Matter of 495 Estates v. New York State Div. of Hous. & Community Renewal, 213 A.D.3d 446, 181 N.Y.S.3d 890, 2023 N.Y. Slip Op. 00720 [1st Dept. 2023];  Matter of 219 W. 81st Residential Holdings, LLC v. New York State Div. of Hous. & Community Renewal, 193 A.D.3d 444, 444, 141 N.Y.S.3d 702 [1st Dept. 2021]).  Petitioner's contention that DHCR failed to adhere to its prior precedents is unavailing, as the two matters it cited are factually distinguishable.  As Supreme Court concluded, the fact that the pipe was installed in accordance with plans approved by the Department of Buildings is irrelevant to DHCR's enforcement of the rent stabilization laws (see Matter of KSLM–Columbus Apts., Inc. v. New York State Div. of Hous. & Community Renewal, 6 A.D.3d 28, 29, 772 N.Y.S.2d 665 [1st Dept. 2004], affd as mod 5 N.Y.3d 303, 801 N.Y.S.2d 783, 835 N.E.2d 643 [2005];  Matter of Sherman v. Commissioner, N.Y. State Div. of Hous. & Community Renwal, 210 A.D.2d 486, 620 N.Y.S.2d 474 [2d Dept. 1994]).

Petitioner's due process rights were not violated by DHCR's failure to provide it with a copy of the DHCR inspector's report for review prior to the administrative determination, as the report merely confirmed information that was already available to petitioner (see Matter of Terrace Ct., LLC v. New York State Div. of Hous. & Community Renewal, 79 A.D.3d 630, 633, 914 N.Y.S.2d 43 [1st Dept. 2010], affd 18 N.Y.3d 446, 940 N.Y.S.2d 549, 963 N.E.2d 1250 [2012]; Matter of Empress Manor Apts. v. New York State Div. of Hous. & Community Renewal, 147 A.D.2d 642, 643, 538 N.Y.S.2d 49 [2d Dept. 1989]).