Matter of Wolk Props., LLC v New York State Div. of Hous. & Community Renewal, 2011 NY Slip Op 01579 [82 AD3d 428]

March 3, 2011

Appellate Division, First Department

— [*1]

Kucker & Bruh, LLP, New York (Robert H. Berman of counsel), for appellant.

Gary R. Connor, New York (Dawn Ivy Schindelman of counsel), for NYSDHCR, respondent.

Himmelstein, McConnell, Gribben, Donoghue & Joseph, New York (David Hershey-Webb of counsel), for 740 West End Avenue Tenants Association, respondent.

Order and judgment (one paper), Supreme Court, New York County (Marcy S. Friedman, J.), entered June 7, 2010, which denied and dismissed the petition brought pursuant to CPLR article 78 to annul a determination of respondent Division of Housing and Community Renewal (DHCR), denying petitioner-owner’s application for a major capital improvement (MCI) rent increase, unanimously affirmed, without costs.

The determination was not arbitrary and capricious and was rationally based on the record ( see Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County , 34 NY2d 222, 231 [1974]; Matter of 370 Manhattan Ave. Co., L.L.C.

v New York State Div. of Hous. & Community Renewal , 11 AD3d 370 , 372 [2004]). Petitioner failed to meet its burden of establishing that the criteria for an MCI rent increase had been met with regard to the claimed pointing and waterproofing work ( see Matter of West Vil. Assoc. v Division of Hous. & Community Renewal , 277 AD2d 111, 113 [2000]). Concur—Saxe, J.P., Sweeny, Catterson, Freedman and RomÁn, JJ..