IN RE: 301 WEST 111TH OWNERS

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Supreme Court, Appellate Division, First Department, New York.

IN RE: 301 WEST 111TH OWNERS, LLC, Petitioner-Appellant, v. DIVISION OF HOUSING AND COMMUNITY RENEWAL, Respondent-Respondent.

Decided: May 06, 2004

TOM, J.P., SAXE, LERNER, MARLOW, GONZALEZ, JJ. Kucker & Bruh, LLP, New York (James R. Marino of counsel), for appellant. Marcia P. Hirsch, DHCR, New York (Jennifer E. Oxford of counsel), for respondent.

Judgment, Supreme Court, New York County (Rosalyn Richter, J.), entered April 21, 2003, which dismissed this proceeding, brought pursuant to CPLR article 78, to annul respondent's order, dated July 11, 2002, denying administrative review of respondent's rent reduction order, unanimously affirmed, without costs.

The determination to reduce the rent for failure to supply adequate heat for 1 1/212 months in the middle of winter had a rational basis (Administrative Code of City of New York § 26-514) and was not arbitrary and capricious (Matter of 258 Riverside Dr. Co. v. New York State Div. of Hous. & Community Renewal, 172 A.D.2d 469, 569 N.Y.S.2d 18).   The evidence before the Rent Administrator showed that the City's Department of Housing Preservation and Development had inspected the tenant's apartment and issued a violation for lack of adequate heat, and that the defective condition was not remedied by the time the rent reduction order was issued.   Although petitioner subsequently submitted evidence showing the condition had been remedied, respondent did not receive that evidence until after the rent reduction order had been issued and after the deadline for responding to the tenant's complaint.

We have considered petitioner's remaining contentions and find them unavailing.