In the Matter of the TENANTS OF HYDE PARK GARDENS et al., Respondents, v. STATE OF NEW YORK, DIVISION OF HOUSING AND COMMUNITY RENEWAL, OFFICE OF RENT ADMINISTRATION, Appellant (And Another Proceeding)
[No number in original]
Court of Appeals of New York
73 N.Y.2d 998; 539 N.E.2d 101; 541 N.Y.S.2d 345; 1989 N.Y. LEXIS 489
Argued March 21, 1989
April 27, 1989, Decided
PRIOR HISTORY: [**1]
APPEAL, by permission of the Appellate Division of the Supreme Court in the Second Judicial Department, from an order of that court, entered May 2, 1988, which affirmed an order of the Supreme Court (Arthur W. Lonschein, J.), entered in Queens County in a proceeding pursuant to CPLR article 78, upon reargument, adhering to a prior determination granting the petition to the extent of determining that the Division of Housing and Community Renewal (DHCR) erred in not ordering a rent reduction and remitting the proceeding to DHCR for a determination of that reduction. The following question was certified by the Appellate Division: "Was the order of this court insofar as it affirmed the order upon the cross appeal properly made?"
Petitioners, as tenants of rent-stabilized apartments in an apartment complex, sought review of a determination of DHCR to the extent that it failed to order a rent reduction after it found that the owner of the complex failed to maintain required services by implementing a new over-all security system, which involved, inter alia, a removal of preexisting outer door locks on each apartment building.
The Appellate Division concluded that Supreme Court [**2] correctly remitted the matter of rent reduction to DHCR, since the agency's determination not to order a rent reduction constituted an exercise of discretion which that agency did not possess, based upon the mandatory nature of the language in the Rent Stabilization Law of 1969 (Administrative Code of City of New York § 26-514), which provided that when the agency determines that there has been a diminution of a "required service", "the commissioner shall so reduce the rent".
Matter of Hyde Park Gardens v State of New York, Div. of Hous. & Community Renewal, Off. of Rent Admin., 140 AD2d 351, affirmed.
HEADNOTES: Landlord and Tenant -- Rent Regulation -- Reduction in "Required Service" -- Rent Reduction
In a proceeding to review a determination of the State Division of Housing and Community Renewal (DHCR) finding that petitioners, as tenants of rent-stabilized apartments, had suffered a diminution in required services after a new security system was implemented but not imposing a rent reduction, an order of the Appellate Division, which affirmed an order, upon reargument, adhering to a judgment granting the petition and remitting the matter for a determination of an appropriate rent reduction, is affirmed for reasons stated in the memorandum at the Appellate Division, which concluded that DHCR's determination not to order a rent reduction constituted an exercise of discretion which that agency did not possess based upon the mandatory nature of the language in the Rent Stabilization Law of 1969 (Administrative Code of City of New York § 26-514), which provided that when the agency determines that there has been a diminution of a "required service", "the commissioner shall so reduce the rent".
COUNSEL: Richard Hartzman and Dennis B. Hasher, for appellant.
Richard M. Creditor, for respondents.
OPINION: [*1000] Order insofar as appealed from affirmed, with costs, and certified question answered in the affirmative for the reasons stated in so much of the memorandum at the Appellate Division as related to the issue of rent reduction (140 AD2d 351).
Concur: Chief Judge WACHTLER and Judges SIMONS, ALEXANDER, TITONE, HANCOCK, JR., and BELLACOSA. Taking no part: Judge KAYE.