176 A.D.2d 941, 575 N.Y.S.2d 553

Supreme Court, Appellate Division, Second Department, New York

In the Matter of FLEETWOOD TENANTS ASSOCIATION, etc., Petitioner-Respondent,
v.
NEW YORK STATE DIVISION OF HOUSING AND COMMUNITY RENEWAL, et al., Respondents, Jerome Fisher, et al., Appellants.

Oct. 28, 1991

Kaufman, Tuchman, Schwartz, Gelles & Korngold, New York City (Paul J. Korngold, of counsel), for appellants.
Dennis B. Hasher, Bronx (Richard Hartzman, of counsel), for respondents.

Before KOOPER, J.P., and SULLIVAN, MILLER and O’BRIEN, JJ.

MEMORANDUM BY THE COURT.

In a proceeding pursuant to CPLR article 78 to review a determination of the New York State Division of Housing and Community Renewal dated July 28, 1987, which, inter alia, granted increases in rent based upon major capital improvement expenditures by the appellant landlords, in which the appellant landlords cross-petitioned to prohibit the New York State Division of Housing and Community Renewal from reopening their application for rent increases, the appeal is from a judgment of the Supreme Court, Queens County (Rozenzweig, J.), entered January 13, 1989, which denied the cross petition.

ORDERED that the judgment is affirmed, with costs.

It is well settled that the extraordinary remedy of prohibition is not available to prevent even ultra vires administrative action when the party seeking such relief may pursue other avenues of judicial review without sustaining irreparable injury (see, Matter of American Tr. Ins. Co. v. Corcoran, 65 N.Y.2d 828, 493 N.Y.S.2d 122, 482 N.E.2d 918; Matter of City of Newburgh v. Public Employment Rel. Bd. of State of New York, 63 N.Y.2d 793, 481 N.Y.S.2d 327, 471 N.E.2d 140). In the instant matter, even assuming that the New York State Division of Housing and Community Renewal was without authority (see, 9 NYCRR 2529.9) to reopen the proceedings dealing with the landlords’ application for rent increases, based upon its admitted failure to consider “vital” matters, the landlords will have an opportunity to obtain judicial review in the event that they are ultimately aggrieved by a determination of the agency. Accordingly, in the absence of any evidence that the landlords will suffer irreparable harm, we find no impropriety in denying prohibition.

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