Justice Cynthia Kern
Kew Gardens Development Corp. (KGDC) sought to modify and annul a denial by New York City’s Department of Housing Preservation and Development of KGDC’s application for a tax abatement under Real Property Tax Law §421-a. Respondents cross-moved for dismissal of the petition, claiming KGDC was ineligible for the exemption as it did not meet Administrative Code §11-245.1-b requirements that a certificate of occupancy indicate there be at least four dwelling units per building. The court found there was a rational basis for the agency’s determination, noting §421-a explicitly provides authority for a local housing agency to exclude certain new multiple dwellings through the passage of a local law. It noted §11-245.1-b(c) provides one exception to the four or more unit rule, which was inapplicable here. Also, 28 RCNY §6-02 permitted certain dwellings to receive tax exemptions if they had only three units, but was now superceded by §11-245.1-b as it conflicted directly with it. Thus, §6-02 was also not available to KGDC as a basis on which to assert the development’s eligibility for a §421-a tax exemption. Hence, the petition was denied and cross-motion granted.
