Court Can't Force DHCR to Consider New Events

Facts: Landlord asked the DHCR for permission to recover portions of two rent-controlled apartments in a small building. Landlord lived in one apartment. The two tenants each had a floor-through apartment on other floors. Landlord claimed that the rent-controlled apartments were underutilized and that she was unable to make a return of at least 8.5 percent of the building's assessed valuation through rental income during 1996, the test year for purposes of the application. Under these conditions, rent control regulations permitted landlord to take back portions of the apartments. Each of the rent-controlled apartments had at least six rooms. The DRA ruled for landlord and said that landlord could recover the front halves of the two rent-controlled apartments. Tenants appealed and lost. The next day, one of the two tenants died. The remaining tenant started a court case. He said that the DHCR should take the case back and reconsider, based on this change in circumstances. The court ruled for tenant, and the DHCR appealed. The appeals court ruled for the DHCR but allowed tenant to appeal to the Court of Appeals. Court: Tenant loses. The court couldn't order the DHCR to consider new events after the DHCR had issued its final ruling in the case. Tenant argued that the rent control law allowed tenant to present to the court new evidence that couldn't have been included previously. But this didn't permit the court to engage in, or order, a new review based on an event that took place after the DHCR made its final ruling. Additional evidence that could be considered was limited to facts that arose before the DHCR made its final ruling, not after.

Rizzo v. DHCR: NYLJ, 12/21/05, p. 18, col. 3 (Ct. App.; Rosenblatt, J)