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

IN RE: 220 CPS “SAVE OUR HOMES” ASSOCIATION, et al., Petitioners-Respondents, v. The NEW YORK STATE DIVISION OF HOUSING AND COMMUNITY RENEWAL, et al., Respondents-Appellants.

Decided: March 31, 2009

TOM, J.P., ANDRIAS, NARDELLI, BUCKLEY, DeGRASSE, JJ. Gary R. Connor, New York (Sandra A. Joseph of counsel), for New York State Division of Housing and Community Renewal appellant. Rosenberg & Estis, P.C., New York (Luise A. Barrack of counsel), for Madave Properties SPE, LLC appellant. Jack L. Lester, New York, for respondents.

Order, Supreme Court, New York County (Paul G. Feinman, J.), entered June 9, 2008, which denied respondents' motions to dismiss the petition, unanimously reversed, on the law, without costs, the motions granted, the petition denied and the proceeding brought pursuant to CPLR article 78 dismissed.

Petitioners are rent stabilized tenants in a building owned by respondent Madave Properties SPE, LLC. They seek, inter alia, to compel respondent New York State Division of Housing and Community Renewal (DHCR) to conduct an environmental impact study (EIS) pursuant to the State Environmental Quality Review Act (SEQRA) (ECL art. 8) in conjunction with its consideration of Madave's application, pursuant to Rent Stabilization Code (RSC) (9 NYCRR) § 2524.5(a)(2), for authorization to refuse to offer renewal leases prior to demolishing the building.   The petition fails to state a cause of action.

DHCR's discretion in determining whether to authorize a refusal to offer lease renewals pursuant to RSC § 2524.5(a)(2) is circumscribed by the criteria whether an applicant has established a financial ability to demolish the building, whether plans for the undertaking have been approved by the appropriate city agency, and whether the applicant has complied with the statutory provisions for the relocation of rent stabilized tenants, the reimbursement of moving expenses, and the payment of stipends (see RSC § 2524.5(a)(2)(ii)(a)-(f)).  In deciding an RSC § 2524.5(a)(2) application, DHCR is not authorized to consider the environmental concerns detailed in an EIS (see Incorporated Vil. of Atl. Beach v. Gavalas, 81 N.Y.2d 322, 599 N.Y.S.2d 218, 615 N.E.2d 608 [1993] ).   Thus, for SEQRA purposes, DHCR's determination of an RSC § 2524.5(a)(2) application is not an “action” on which the preparation of an EIS is required, but is merely “ministerial” (see ECL § 8-0105[5][ii];  § 8-0109[2];  Gavalas at 326, 599 N.Y.S.2d 218, 615 N.E.2d 608;  Matter of Citineighbors Coalition of Historic Carnegie Hill v. New York City Landmarks Preserv. Commn., 306 A.D.2d 113, 762 N.Y.S.2d 59 [2003], appeal dismissed 2 N.Y.3d 727, 778 N.Y.S.2d 740, 811 N.E.2d 2 [2004] ).