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

IN RE: Cecile SCHOBERLE, Petitioner-Appellant, v. NEW YORK STATE DIVISION OF HOUSING AND COMMUNITY RENEWAL, Respondent-Respondent, 235 West 71st Street, LLC, Intervenor-Respondent.

Decided: January 25, 2005

FRIEDMAN, J.P., MARLOW, NARDELLI, SWEENY, CATTERSON, JJ. Gamiel A. Ramson, New York, for appellant. Marcia P. Hirsch, New York (Carl Eckstein of counsel), for state respondent. Kucker & Bruh, LLP, New York (James R. Marino of counsel), for 235 West 71st Street, LLC, respondent.

Judgment, Supreme Court, New York County (Nicholas Figueroa, J.), entered December 23, 2003, denying the petition and dismissing this proceeding brought pursuant to CPLR article 78 seeking to annul a DHCR order, dated January 17, 2003, which had denied a Petition for Administrative Review and affirmed a Rent Administrator's order rejecting a request for rent reduction, unanimously affirmed, without costs.

The determination that removal of storage space by intervenor-respondent was de minimis and did not support a rent decrease is in full accord with applicable law, was neither arbitrary nor capricious, and had a rational basis in the record (see Matter of Fresh Meadows Assoc. v. Conciliation & Appeals Bd., 88 Misc.2d 1003, 390 N.Y.S.2d 351 [1976], affd. 55 A.D.2d 559, 390 N.Y.S.2d 69 [1976], affd. 42 N.Y.2d 925, 397 N.Y.S.2d 1007, 366 N.E.2d 1361 [1977];  Matter of Pell v. Board of Educ., 34 N.Y.2d 222, 230-31, 356 N.Y.S.2d 833, 313 N.E.2d 321 [1974] ).   The Deputy Commissioner did not apply an unconstitutional ex post facto standard in making its de minimis determination, since the policy was neither penal nor criminal in nature (see Town of Hempstead v. Goldblatt, 19 Misc.2d 176, 182, 189 N.Y.S.2d 577 [1959], affd. 9 A.D.2d 941, 196 N.Y.S.2d 573 [1959], affd. 9 N.Y.2d 101, 211 N.Y.S.2d 185, 172 N.E.2d 562 [1961], affd. 369 U.S. 590, 82 S.Ct. 987, 8 L.Ed.2d 130 [1962] ).   Furthermore, the agency's consideration of the results of its request of tenants for evidence of a lease provision and/or storage boxes was consistent with the remand order of this Court in Matter of Hakim v. Division of Hous. & Community Renewal, 273 A.D.2d 3, 708 N.Y.S.2d 112 [2000], appeal dismissed 95 N.Y.2d 887, 715 N.Y.S.2d 378, 738 N.E.2d 782 [2000].   Nor did the 1995 DHCR Memorandum constitute a change in policy, as opposed to simply a written instruction providing guidelines to a policy already in use.