apartment to be . . . higher than that for a one- or two-bedroom apartment,"
the Deputy Commissioner, inter alia, concluded that "the nature and quantity of
additional dwelling space added to the subject apartment" warranted a rent increase of
$204.01 per month under Rent Stabilization Code (9 NYCRR) § 2522.4 (a)
(1).
[*4] The petitioner thereafter
commenced the instant CPLR article 78 proceeding. The Supreme Court, among other
things, granted the petition to the extent of annulling that portion of the Deputy
Commissioner's determination that recalculated the legal regulated rent to be $1,200 per
month. In so doing, the Supreme Court rejected the Marrones' argument that, even if they
were not entitled to a legal regulated rent of $1,200 per month pursuant to Rent
Stabilization Code (9 NYCRR) § 2522.4 (a) (1), they were nonetheless
entitled to charge a first stabilization rent and that the Deputy Commissioner's
determination to the contrary was arbitrary and capricious.
In my view, the Marrones' contention has merit. "The mechanism pursuant to which
a landlord may charge a 'first' or 'free market' rent is an administratively created policy
implemented by DHCR in its capacity as the administrative agency which regulates
residential rents" (Matter of 300 W. 49th St. Assoc. v New York State Div. of Hous.
& Community Renewal, Off. of Rent Admin., 212 AD2d 250, 253 [1995];
see Matter of Devlin v New York State Div. of Hous. & Community
Renewal, 309 AD2d 191, 193 [2003]). Under that policy, "[w]here an owner
significantly changes the perimeter and dimensions of an existing housing
accommodation," such that the previous apartment no longer exists, the owner may
charge "a market or 'first rent,' subject to guidelines limitations for future rent