In the Matter of Plaza Realty Investors, Appellant, v. New York State Division of Housing and Community Renewal et al., Respondents

In the Matter of Plaza Realty Investors, Appellant, v New York State Division of Housing and Community Renewal et al., Respondents. [671 NYS2d 973] [MAJORITY] —Order, Supreme Court, New York County (Robert Lippmann, J.), entered July 18, 1997, which, to the extent appealed from, denied the petition pursuant to CPLR article 78 insofar as it sought a recalculation of rent by reason of a claimed vacancy allowance and by reason of an allegedly under-calculated permissible rent increase, unanimously affirmed, without costs. Respondent’s denial of a vacancy rent increase for the subject rent stabilized apartment, was not arbitrary and capricious where petitioner landlord concededly chose to forgo its formal remedies and resolve the matter of an unauthorized roommate without the execution of a new lease. Further, since the remaining rent calculation issue was not presented at the administrative level, its consideration was properly declined by the article 78 court (see, Matter of Mott v New York State Div. of Hous. & Community Renewal, 191 AD2d 566). Concur— Rosenberger, J. P., Wallach, Tom and Saxe, JJ.