In the Matter of 338 West 46th Street Realty, LLC, Appellant, v. State of New York State Division of Housing and Community Renewal et al., Respondents, and George Morton et al., Intervenors-Repondents

In the Matter of 338 West 46th Street Realty, LLC, Appellant, v State of New York State Division of Housing and Community Renewal et al., Respondents, and George Morton et al., Intervenors-Repondents. [957 NYS2d 292] [MAJORITY] Respondents’ determination had a rational basis, given the pendency of a Civil Court proceeding involving the rent overcharges issue (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]). Under all of the relevant circumstances, the doctrine of “primary jurisdiction” (Sohn v Calderon, 78 NY2d 755, 768 [1991]) does not support petitioner’s argument that respondent agency abused its discretion in determining that it was appropriate for the Civil Court to resolve the rent overcharge issue, especially since the agency made the determination, not the court. We have considered petitioner’s remaining arguments and find them unavailing. Concur — Gonzalez, P.J., Sweeny, Richter, Román and Clark, JJ.