FILED: NEW YORK COUNTY CLERK 01/12/ :51 PM INDEX NO /2016 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 01/12/2018

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1 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: I.A.S. PART 8 = BROOK D. WHITMAN, Index No /2016 Petitioner, For a Judgment pursuant to Article 78 of the NOTICE OF ENTRY Civil Practice Law and Rules, -against- STATE OF NEW YORK DIVISION OF HOUSING AND COMMUNITY RENEWAL and SOL GOLDMAN INVESTMENT, LLC, Respondents PLEASE TAKE NOTICE that the undersigned attorney certifies that the within is a true copy of a Decision/Order of the Hon. Lynn R. Kotler, J.S.C. dated December 6, 2017, duly entered and filed in the Office of the Clerk of the County of New York on December 13, 2017 Dated: New York, New York January 12, 2018 Yours etc. Judith M. Brener, Esq. By: Jeffrey M. Goldman, Esq. Attorney Respondent-Landlord, Sol Goldman Investments, LLC 1185 Sixth Avenue, 10th Floor New York, New York (212) jeffreyg@solil.com To: All Parties (By E-File) Law Offices of Jack L. Lester By: Jack L. Lester, Esq. Attorneys Petitioner 99 Park Avenue, Suite 1100 New York, New York (212) JLLComLaw@aol.com WhitmanBrookNoticeofEntry011218jmg 1 of 6

2 New York State Division of Housing and Community Renewal By: Martin B. Schneider, Esq. 25 Beaver Street, 7th Floor New York, New York (212) WhitmanBrookNoticeofEntry011218jmg 2 of 6

3 +F. 2D : NEW YORK COUNTY CLERK 12 /13/ : 18 AM/ NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 12/13/2017 SUPREME COURT OF THE STATE OFNEW YORK NEW YORK COUNTY PRESENT: HON.LYNN R. KOTLER, J.S.C. PART 8 BROOK D. WHITMAN, - v - STATE OF NEW YORK DIVISION OF HOUSING AND COMMUNITY RENEWAL and SOL GOLDMAN INVESTMENT, LLC MOT. DATE MOT. SEQ. NO. 001 The following papers were read on this motion to/ article 78 Notice of Motion/Petition/O.S.C. - Affidavits- â Exhibits ECFS DOC No(s). Notice of Cross-Motion/Answering Affidavits - Exhibits ECFS DOC No(s). Replying Affidavits ECFS DOC No(s). In this CPLR Article 78 proceeding, petitioner seeks to challenge a final order issued by DHCR on October 25, 2016 that denied his challenge to the MBR order of eligibility a rent increase. Respondents New York Division of Housing and Community Renewal (DHCR) and Sol Goldman Investments LLC (Goldman) have answered the petition and oppose the relief sought herein.. 680' Petitioner is a tenant in a rent controlled apartment, who resides at 25 West Street, New York, New York. Goldman filed an application a Maximum Base Rent (MBR) order of eligibility with DHCR. The Rent Administrator granted Goldman's application MBR increases the biennial period effective January 1, Tenant challenged the order alleging that the MBR order of eligibility should not have been granted as the Owner/Goldman was earning more than 8.5% on capital value; that DHCR did not comply with the tenant's request access to the buildings records such as monthly checks and that there were outstanding violations on the building. Petitioner also claimed, the first time in the instant proceeding, various code violations relating to essential services. On or about June 27, 2016, the Rent Administrator denied tenant s challenge and affirmed the owner's MBR order of eligibility. Tenant then filed a petitioner administrative review (PAR) to challenge the June 27, 2016 order. On October 25, 2016, the DHCR denied tenant's PAR and affirmed the MBR order. This Article 78 then ensued. Dated: 'U I I 1,/ HON. LYNN R. KOTLER, J.S.C. 1. Check one: ItII CASE DISPOSED U NON-FINAL DISPOSITION 2. Check as appropriate: Motion is GRANTED 5 DENIED 0 GRANTED IN PART 0 OTHER 3. Check if appropriate: OSETTLE ORDER 0 SUBMIT ORDER O DO NOT POST OFIDUCIARY APPOINTMENT 0 REFERENCE Page 1 of 3 1 of 3 3 of 6

4 FILED : NEW YORK COUNTY CLERK 12 /13/ : 18 AM NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 12/13/2017 Goldman argues that petitioner is raising new arguments and issues, more specifically that DHCR failed to conduct a review of Goldman's eligibility, violations of elevator repairs and lead paint. failure to account commercial rental income, and misrepresentation of rent roll, that were never presented to the Rent Administrator and theree petitioner should be precluded from raising these arguments now. Petitioner may not make submissions and raise arguments in this Article 78 proceeding that were not adduced bee the agency (West Village Associates v. State Div. of Housing & Community Renewal, 277 A.D.2d 111, 717 N.Y.S.2d 31 [2000]). Here, there is no dispute that petitioner did not advanced any of the subject arguments bee the Rent Administrator nor is there any reference in any of the DHCR orders until the instant proceeding. Theree, these claims that petitioner raises the first time, vis a vis, code violations, are dismissed. In the context of an Article 78 proceeding, courts have held that "a reviewing court is not entitled to interfere in the exercise of discretion by an administrative agency unless there is no rational basis the exercise, or the action complained of is arbitrary and capricious." Matter of Soho Alliance v New York State Liquor Authority, 32 AD3d 363, 363, 821 N.Y.S.2d 31 (Ist Dept 2006), citing to Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns qfscarsdale and Mamaroneck. Westchester County, 34 N.Y.2d 222, 356 N.Y.S.2d 833 (1974); see CPLR 7803 (3). "The arbitrary and capricious standard asks whether the determination in question had a rational basis [internal quotation marks and omitted]." citations Matter of Mankarios v New York City Taxi & Limousine Commission, 49 AD3d 316, 317, 853 N.Y.S.2d 69 (l st Dept 2008) "This settled standard requires the Court to assess whether the action in question was taken 'without sound basis in reason and... without regard to the facts'" (Matter of County of Monroe v Kaladjian, 83 NY2d 185, 189, 608 N.Y.S.2d 942 [1994]). Petitioner next argues that DHCR failed to conduct a thorough/administrative review or inquiry and that because DHCR denied its request infonnation it did not have a full and fair administrative proceeding. Goldman claims that it complied with the certification requirement an MBR increase and that DHCR properly granted its MBR application. DHCR argues that its records reflect as of January 1, 2015 that there were no violations reported against the building on record with HPD. which the petition does not dispute and that the Final Order dated October 25, 2016 found that Goldman met the violation certification requirement to be eligible MBR increase the period effective January 1, 2016 and that it also "reasonably found that the MBR program application, Owner certifled that all of the essential services, as defined in Section (b)(2) of the City Rent and Eviction credibly Regulations, have been maintained. DHCR claims that the Final Order dated October 25, 2016, which denied the tenant's PAR and affirmed the MBR order of eligibility made numerous determinations, to wit: the Owner had to certify and establish that all rent impairing violations and at least 80% of all other violations reported against the building with HPD as of January 1, 2015 had been cured by June 30, 2015; DHCR's records reflect that as of January 1, 2015 there were no violations reported against the building on record with HPD and that the Owner met the prescribed certification requirements to be eligible the MBR increases ; the landlord credibly certified that all essential services have been maintained even thought there was no claim such services have not been provided; the Rental Administrator determined that the Owner's operation and maintenance expense certification met the requirements issuing the ' MBR order of eligibility without the necessity of conducting an audit of the financial records the building. Page 2 of 3 2 of 3 4 of 6

5 P LED : NEW YORK COUNTY CLERK 12/13/ : 18 AM NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 12/13/2017 The MBR system was established all rent-controlled housing accommodations in the City of New York, effective January 1, 1972 (NY Rent and Rehabilitation Law [Administrative Code of City of NY] [a] [3]; see NY City Rent and Eviction Règulations [9 NYCRR] [a] [1]), with biennial adjustments thereafter. The system was established at a time of significant price inflation to assure increased building revenues owners to operate and maintain their buildings (see e.g. Matter qf89 Christopher v Joy, 35 NY2d 213, 217, 360 NYS2d 612 [1974]). In applying such an increase, an owner must certify that it is maintaining and will continue to maintain all essential services (see NY Rent and Rehabilitation Law [g] [6] [a] [2]; 9 NYCRR , [a]), and that six months prior to the effective date of the MBR increase it has corrected all rent-impairing and at least 80% of all non-rent-impairing housing code violations (NY Rent and Rehabilitation Law [h] [6]). The procedures used by DHCR in reviewing MBR increase applications are longstanding and have been approved by this Court (see e.g. Matter of Mayflower Dev. Corp. v Roldan, 298 AD2d 291, 748 NYS2d 746 [2002]; Matter of Barklee Realty Co. v New York State Div. of Hous. & Community Renewal, 159 AD2d 416, 553 NYS2d 112 [1990], lv denied 76 NY2d 709, 563 NYS2d 61 [1990]). Goldman filed an application an increase the 2016/2017 cycle in accordance with the proscribed MBR requirements, filed a violation certification, operation and maintenance certification and essential services certification and paid a fee. DHCR found owner's certification satisfactory without the necessity of conducting an audit. Moreover, DHCR also found that "there are five full time employees and two part-time employees employed in the subject building to provide, among other things. maintenance services and a door/lobby attendant on duty twenty-four hours, seven days a week. As there has been no reported violations reported against the subject building on record with HPD during the applicable review period; as the subject tenant has not raised any claim that essential services are not being provided...it is reasonable to conclude that the landlord has expended substantial monies to maintain the building and the subject apartments in good condition, the result intended by the expense certification requirement". Here, petitioner did not come ward with any credible evidence that there were any outstanding violations during the applicable period or that would place iri doubt the owners expense certification that would warrant a different result or discredit, in any way, the owners certification. Based on the egoing, the petition is denied in its entirety. CONCLUSION In accordance herewith, it is hereby ORDERED and ADJUDGED that the petition is denied and the Clerk is directed to enter judgment accordingly. Any requested relief not expressly addressed herein has nonetheless been considered and is hereby expressly denied and this constitutes the Decision and Order of the court. Dated: So Ordered: New Y rk, ew ork Hon. Lynn R. Kotler, J.S.C. Page 3 of 3 3 of 3 5 of 6

6 I No =o=y Yea 2016 o. ear Supreme otp. OF THE F PLEASE take notice that the within is a (certified) County New York true copy of a COUNTY OF duly entered in the office of the clerk of the within named court on Brook D. Whitman, Dated, Yours, etc. Petitioner, -against- Attorney Offce and Post Offce Address State of New York Division of Housing and 1185 Sixth Avenue, 10th Floor Community Renewal, et al., NEW YORK, NY Aspondents, To Attorney(s) Notice of Entry NOllCEOFSKPIIEIKKT PLEASE take notice that an order Signature e a) of which the within is a true copy will be presented Printnam th settlement to the Hon. one of the judges of the within named Court, at Jef f rey M. Goldman, Esq. Attorney on JUDITH M. BRENER, ESQ. at M. Offee a t gress, Telephone Dated, 1185 ixt venue, 10th Floor Yours, etc. NEW YORK, NY Attorney Offce and Post Ofpce Address 1185 Sixth Avenue, 10th Floor NEW YORK, NY To Attorney(s) To Service of a copy of the within is hereby admitted. Dated Attorney(s) Attorney(s) Isoo â SnrtnnbrergpcelslorInc.. NYc I oo13 6 of 6