Velasquez v. New York State Division of Housing & Community Renewal, 130 A.D.3d 1045 (2015)

Skelos, J.P.,
concurs in part and dissents in part, and votes to modify the judgment, on the law, by (1) adding provisions thereto (a) vacating so much of the determination dated January 17, 2013, as denied the Marrones a first stabilization rent and (b) determining that the Marrones are entitled to a first stabilization rent, and (2) deleting the provision thereof remitting the matter to the New York State Division of Housing and Community Renewal for a new calculation of the legal regulated rent pursuant to Rent Stabilization Code (9 NYCRR) § 2522.4 (a) and substituting therefor a provision remitting the matter to the New York State Division of Housing and Community Renewal for a new calculation of the legal regulated rent as a first stabilization rent, and as so modified, to affirm the judgment, with the following memorandum: I agree with the majority that the determination of the Deputy Commissioner (here*1049inafter the Deputy Commissioner) of the Department of Housing and Community Renewal (hereinafter the DHCR) that Steve Marrone and Josephine Marrone (hereinafter the Marrones) were entitled to a rental increase of $204.01 per month under Rent Stabilization Code (9 NYCRR) § 2522.4 (a) (1) is arbitrary and capricious. However, in my view, the Deputy Commissioner’s determination that the Marrones were not entitled to charge the petitioner a free-market rent in her initial lease, also known as a first rent or a first stabilization rent, is also arbitrary and capricious. I would, therefore, vacate that portion of the Deputy Commissioner’s determination and substitute therefor a determination that the Marrones were entitled to charge the petitioner a first stabilization rent for the subject unit. For that reason, I dissent, in part.