IN RE: Application of Richard SACK

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

IN RE: Application of Richard SACK, et al., Petitioners-Appellants, For a Judgment, etc., v. NEW YORK STATE DIVISION OF HOUSING AND COMMUNITY RENEWAL, Respondent-Respondent, Charlotte Deutsch, Intervenor-Respondent-Respondent.

Decided: May 26, 1998

Before MILONAS, J.P., and NARDELLI, MAZZARELLI and ANDRIAS, JJ. Mitchell P. Heaney, for Petitioner-Appellants. Martin B. Schneider, for Respondent-Respondent. M. Bruce Solomon, for Intervenor-Respondent-Respondent.

Order and judgment (one paper), Supreme Court, New York County (Lorraine Miller, J.), entered February 10, 1997, which, inter alia, denied that part of petitioners' application pursuant to CPLR article 78 seeking to annul the June 16, 1995 determination of respondent New York State Division of Housing and Community Renewal (“DHCR”) that petitioners were rent stabilized rather than rent controlled tenants, unanimously affirmed, without costs.

We agree with Supreme Court that the Commissioner's order, finding that petitioners' apartment was subject to the rent stabilization laws rather than the rent control laws, had a rational basis and was not arbitrary and capricious (see, Matter of Pell v. Bd. of Educ., 34 N.Y.2d 222, 230-231, 356 N.Y.S.2d 833, 313 N.E.2d 321).   After the subject building's J-51 tax abatements expired in 1982, petitioners' apartment became decontrolled (see, 143-145 West 81st Corp. v. Troncelliti, NYLJ, May 23, 1985, at 6, col. 5 [App. Term, 1st Dept];  Matter of Dubois v. Joy, NYLJ, Sept. 15, 1976, at 12, col. 1 [Sup. Ct. N.Y. County] ).   While the building, by reason of containing fewer than six housing accommodations, did not become subject to the Rent Stabilization Law immediately after the tax benefits ended, in June of 1985, with the enactment of Chapters 288 and 289 of the Laws of 1985, providing, as is here relevant, that apartments in buildings that had received J-51 tax benefits became, upon the termination of those benefits, subject to rent stabilization until the first subsequent vacancy, petitioners' apartment, resided in continuously by petitioners since 1973, was brought under rent stabilization.

We have considered petitioners' remaining contentions and find them to be without merit.