McCarthy v. New York State Division of Housing & Community Renewal

Order and judgment (one paper), Supreme Court, New York County (William Davis, J.), entered March 24, 1994, which denied petitioner’s application pursuant to CPLR article 78 to annul respondent’s determination granting an application by the owner of the subject premises for a rent increase, and dismissed the petition, unanimously affirmed, without costs. Respondent’s determination to include debt service arrears as current operating expenses in calculating a rent increase application for this Mitchell-Lama publicly assisted limited profit development conformed to the agency’s statutory responsibilities (Private Housing Finance Law §§ 28, 31), as the Legislature did not intend the goal of providing low and middle income housing "to be achieved at any cost” as housing companies "should be able to charge rents that enable them to pay their expenses, including debt service, and to receive a return on their investment” (Matter of Arbor Hill Partners v New York State Div. of Hous. & Community Renewal, 156 AD2d 896, 898, 899, lv denied 75 NY2d 711). The court also properly rejected petitioner’s argument that the debt service allocation was a double payment. Accordingly, the Division of Housing and Community Renewal determination was neither arbitrary nor capricious and was supported by the record, and thus the petition was properly dismissed (see, Matter of Eastwood Bldg. Comm. v Eimicke, 130 AD2d 425, lv denied 70 NY2d 816). Concur—Rubin, J. P., Kupferman, Asch and Tom, JJ.