Lentnek v. New York City Conciliation & Appeals Board

121 A.D.2d 633, 504 N.Y.S.2d 37, 1986 N.Y. App. Div. LEXIS 58617

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 23, 1986
• Status: Published

Opinion

In a proceeding pursuant to CPLR article 78 to review a determination of the New York City Conciliation and Appeals Board (hereinafter CAB), which fined the petitioner landlord one month’s rent and reduced the monthly rent for failure to comply with a prior order directing him to make certain repairs, the CAB, by its successor, the New York State Division of Housing and Community Renewal (hereinafter DHCR), appeals from an order of the Supreme Court, Kings County (Kramer, J.), dated December 6, 1984, which remitted the matter to the DHCR for further findings of fact.

Appeal taken as of right dismissed, without costs or disbursements. An order made in a proceeding against a body or officer pursuant to CPLR article 78 is not appealable as of right (see, CPLR 5701 [b] [1]).

Leave to appeal is granted by Justice Mangano.

Upon appeal by permission, order reversed, on the law and the facts, without costs or disbursements, determination confirmed and proceeding dismissed on the merits.

The petitioner failed, for a period of eight months, to comply with a CAB order directing him to repair the ceilings and walls in apartment in the building owned by him. Although the record reveals that the petitioner attempted to correct the leakage condition in the ceiling and walls of the apartment, the problem recurred three times during the period and was never satisfactorily remedied months after compliance was due. The CAB subsequently fined the petitioner one month’s rent ($362) and reduced the rent of the apartment to the level in effect prior to the most recent guidelines increase until sufficient repairs were completed. The determination of the CAB was not arbitrary and capricious; nor was the penalty so disproportionate to the offense, in light of all the circumstances, as to be shocking to one’s sense of fairness (see, Matter of Pell v Board of Educ., 34 NY2d 222; Matter of Pierre v Popolizio, 108 AD2d 815; Matter of NKR Mgt. v Rent Stabilization Assn., 92 AD2d 570; Matter of Thwaites Place Assoc. v New York City Conciliation & Appeals Bd., 81 AD2d 804, affd 54 NY2d 798). Mollen, P. J., Lazer, Mangano and Thompson, JJ., concur.