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

—Judgment, Supreme Court, New York County (Ira Gammerman, J.), entered March 21, 1997, which denied petitioners’ application pursuant to CPLR article 78 and dismissed the petition seeking annulment of an order of the Deputy Commissioner of the Division of Housing and Community Renewal (DHCR), dated May 24, 1996, affirming a rent reduction order of the District Rent Administrator of DHCR dated August 11, 1994, unanimously affirmed, without costs. DHCR’s determination reducing the rent of complainant, a tenant of rent-stabilized premises, by reason of petitioner landlords’ failure to provide required services had a rational basis and was not arbitrary and capricious (see, Matter of Dupont Assocs. v State Div. of Hous. & Community Renewal, 179 AD2d 359, lv denied 80 NY2d 760). The tenant’s complaint that the refrigerator in her apartment was not working properly, froze food, and leaked, was confirmed by an impartial on-site inspection conducted by DHCR, which disclosed abnormal freezer and refrigerator temperatures, and improperly installed refrigerator gaskets (see, Matter of Howard-Carol Tenants’ Assn. v New York City Conciliation & Appeals Bd., 64 AD2d 546, affd 48 NY2d 768). Petitioners’ remaining claims either were not raised before the Rent Administrator or were raised for the first time in this proceeding and, accordingly, were not properly before the IAS Court (Matter of Birdoff & Co. v New York State Div. of Hous. & Community Renewal, 204 AD2d 630; Matter of Fanelli v New York City Conciliation & Appeals Bd., 90 AD2d 756, 757, affd 58 NY2d 952). Concur — Sullivan, J. P., Milonas, Rosenberger, Nardelli and Williams, JJ.