This proceeding is brought pursuant to CPLR Article 78 to review the "Order and Opinion Denying Petition for Administrative Review" of respondent New York State Division of Housing and Community Renewal ("DHCR" or "the respondent"), dated January 24, 2013. The cause for litigation arises out of a [*2]January 26, 2012 challenge made by Busya Levenkova ("the petitioner" or "the tenant"). Ms. Levenkova filed a Petition for Administrative Review ("PAR") challenging the December 30, 2011 order by a Rent Administrator granting the owner's application to restore rent for the subject apartment, 301, located at 402 Ocean Parkway, Brooklyn, New York. On January 24, 2013, DHCR issued an order and opinion ("the PAR Order") denying Ms. Levenkova's petition. The petitioner argues that DHCR's decision is arbitrary, capricious and in violation of the law; thus, it should have undergone administrative review. In opposition to the petition, the respondent asks that this court uphold the decision and deny the petition for administrative review.

Factual Background

The tenant filed a complaint on October 8, 2008 alleging a decrease in services. Based upon the record, DHCR found that the petitioner's refrigerator and kitchen cabinets were not properly maintained by the building owner, Rose Realty Association. As a result, a Rent Administrator issued an Order Reducing Rent on April 14, 2009. On two subsequent occasions, once on May 3, 2010 and again on August 31, 2011, the property owner applied to restore rent. Each application was denied for failure to fully restore the services originally cited in the April 14, 2009 order. On both occasions, the Rent Administrator found that while the refrigerator was replaced, the kitchen cabinets remained damaged and in need of repair.Following the denial of the May 3, 2010 application to restore rent, the property owner filed a PAR against the order of the Rent Administrator. On September 24, 2010, DHCR denied the owner's PAR and upheld the decision to deny a restoration of rent.

Approximately a year later, on September 22, 2011, the property owner again filed an application with DHCR for rent restoration. The tenant did not file a response to this application.The tenant also failed to respond to a Notice of Commencement of Proceeding to Restore Rent, dated September 26, 2011 and a Final Notice Pending Default, dated November 3, 2011. Given the tenant's failure to respond, DHCR found that the remaining issue of the kitchen cabinets was resolved and issued an order, dated December 30, 2011, restoring rent. On January 26, 2012 the tenant filed a PAR seeking review of the order restoring rent. The tenant's PAR was denied on January 24, 2013. The tenant now seeks review of that denial. [*3]

Ms. Levenkova asserts that DHCR wrongfully denied the PAR and that the administrative decision to restore rent should have undergone review.Her argument rests on the assumption that the owner of the property could only seek a restoration of rent by appealing the previous PAR denial, dated September 24, 2010. This is an inaccurate understanding of the process by which the property owner can seek a restoration of rent. The Rent Stabilization Code, set forth in 9 N.Y.C.R.R. §2523.3, states in relevant part that, "Restoration shall take effect, where restoration of services has been determined in a proceeding commenced by an owner's application for rent restoration." Therefore, a proper avenue to seek a restoration of rent once services have allegedly resumed, would be by application for restoration of rent; the respondent correctly made such an application.

Discussion

The standard of review of an administrative finding is whether it was arbitrary and capricious or without a rational basis in the record.Greystone Mgt. Corp. v. Conciliation and Appeals Bd., 94 AD2d. 614, 462 N.Y.S.2d 13 (1st Dept. 1983), aff'd, 62 NY2d 763, 465 N.E. 2d 1251, 477 N.Y.S.2d 315 (1984).This Court's function is simply to determine whether a rational basis supports the agency's determination. The Court may not substitute its judgment for that of the commissioner if the decision is rationally based in the record. Howard-Carol Tenants' Ass'. v. New York City Conciliation and Appeals Bd., 64 AD2d 546, 6 N.Y.S.2d 845 (1st Dept. 1979), aff'd, 48 NY2d 768, 399 N.E.2d 942, 423 N.Y.S.2d 911 (1979), reargument denied, 48, NY2d 1027, 2 N.E.2d 146, 425 N.Y.S.2d 1029 (1980).

The petitioner's belief that the property owner could only seek a restoration of rent by appealing the previous PAR denial is mistaken. Appealing a denial of a PAR and filing a new application for rent restoration are two distinct actions.Here, the property owner was not seeking a review of the PAR decision, rather, he was seeking a new determination of whether the services in question had been restored, justifying a restoration of rent. The petitioner says in her statement to this Court that she answered the property owner's two previous applications for rent restoration. She does not, however, explain why she failed to respond to the third application for rent restoration.She asserts no claim that she did not receive the notices. [*4]

Had the petitioner responded to the application, she would have been afforded the opportunity to object to the property owner's claim that all services had been restored. According to DHCR, as of May 3, 2010, the only service still requiring maintenance was rusting on a kitchen cabinet. If this issue was still not resolved at the time of the property owner's application for rent restoration, the petitioner should have brought this to the attention of DHCR. The petitioner chose not to answer and there was no opposition to the respondent's application. DHCR determined that the respondent had restored the complained of lack of service and ordered that rent be restored. Additionally, the Court notes that Ms. Levenkova does not mention in her statement to the Court or her statement to the respondent that the cabinets still require maintenance.

DHCR granted the property owner's application for rent restoration due to the petitioner's failure to answer numerous notices. Ms. Levenkova's lack of response provides a rational basis for granting the property owner's application, since there was no evidence that there was any reason to sustain any reduction in rent. Accordingly, the petitioners' application to set aside the Division of Housing and Community Renewal's January 14, 2014 final order is denied.

This constitutes the decision and order of this Court.

E N T E R

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yvonne lewis, JSC