2421 Realty Co. v. New York State Division of Housing & Community Renewal

Order, Supreme Court, Bronx County (Barry Salman, J.), entered February 6, 1992, which denied petitioner’s motion for attorneys’ fees pursuant to CPLR article 86, unanimously affirmed, without costs. The IAS Court properly denied attorneys’ fees pursuant to CPLR 8601 to petitioner-landlord which had previously obtained a writ of mandamus to compel respondent State agency to render a final determination on two petitions for administrative review (PAR) brought by tenants challenging the State agency’s grant of petitioner’s request for a major capital improvement (MCI) rent increase. Respondent agency ultimately upheld the grant of an MCI to petitioner, but petitioner sought to recover attorneys’ fees urging, inter alia, that respondent was statutorily mandated to determine the PAR within 90 days of filing, which it had failed to do. It is initially noted that CPLR article 86 is in derogation of the common law because it shifts to the State the obligation for the payment of counsel fees in limited circumstances and thus is to be strictly construed (Matter of Peck v New York State Div. of Hous. & Community Renewal, 188 AD2d 327). Here, respondent’s obligation to adjudicate PAR reviews within the specified time is directory (see, Matter of 140 W. 57th St. Corp. v State Div. of Hous. & Community Renewal, 130 AD2d 237), as the failure to comply with the 90-day rule merely permits the petition to be "deemed denied” for purposes of allowing a party to bring a writ of mandamus (Matter of Dorchester Assocs. v State of N. Y. Div. of Hous. & Community Renewal, 149 AD2d 388). On the facts contained in this record, the agency’s failure to render a decision within 90 days was "substantially justified” within the meaning of the statute (CPLR 8601 [a]; see, Pierce v Underwood, 487 US 552, 565). Concur—Sullivan, J. P., Carro, Ellerin and Wallach, JJ.