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Court of Appeals of New York.

IN RE: 333 EAST 49TH ASSOCIATES, LP, et al., Appellants, v. NEW YORK STATE DIVISION OF HOUSING AND COMMUNITY RENEWAL, Office of Rent Administration, Respondent.

Decided: November 27, 2007

Shaw and Binder, New York City (Robert H. Gordon of counsel), for appellants. Gary R. Connor, New York City, and Jeffrey G. Kelly for respondent.


The order of the Appellate Division should be affirmed, with costs.

A rational basis exists for the Division of Housing and Community Renewal's determination that petitioners failed to maintain adequate janitorial services warranting a rent reduction (see Matter of Gilman v. New York State Div. of Hous. & Community Renewal, 99 N.Y.2d 144, 149 [2002] ).   The determination, implicitly rejecting petitioners' claim that the violation was de minimis, is rationally based on the inspector's observations of debris in the compactor rooms, which confirmed the tenants' sworn complaint of filthy compactor rooms that were not maintained.   DHCR's determination that petitioners reduced services by failing to maintain the compactor rooms was not irrational and must be sustained (see Matter of KSLM-Columbus Apts., Inc. v. New York State Div. of Hous. & Community Renewal,  5 N.Y.3d 303, 312 [2005];  Matter of Mid-State Mgt. Corp. v. New York City Conciliation & Appeals Bd., 112 A.D.2d 72, 75-76, 491 N.Y.S.2d 634 [1st Dept.1985], affd. 66 N.Y.2d 1032, 499 N.Y.S.2d 398, 489 N.E.2d 1300 [1985] ).

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order affirmed, with costs, in a memorandum.


Chief Judge KAYE and Judges CIPARICK, GRAFFEO and JONES concur; Judges READ, SMITH and PIGOTT dissent and vote to reverse for the reasons stated in the dissenting memorandum by Justice GEORGE D. MARLOW at the Appellate Division (40 A.D.3d 516, 517-520, 837 N.Y.S.2d 63 [2007] ).