Opinion
October 24, 1994
Appeal from the Supreme Court, Kings County (Dowd, J.).
Ordered that the judgment is modified, on the law, by deleting the provisions thereof which made findings that the landlord could not have realized an 8 1/2% return on the property and that the landlord genuinely intends to withdraw the tenants' apartment from the rental market and which limited the purpose of the further hearing to the issues of the economic status of the premises, the alleged mismanagement of the premises, and claims of harassment, and substituting therefor a provision remitting the matter to the New York State Division of Housing and Community Renewal for reprocessing of the landlord's application for a certificate of eviction; and as so modified, the judgment is affirmed, without costs or disbursements.
We agree with the conclusion of the Supreme Court that the audit of the landlord's property conducted by the New York State Division of Housing and Community Renewal (hereinafter the DHCR) was flawed in several respects. Specifically, the audit failed to include the landlord's documented expenses with regard to mortgage payments, sewer charges, water charges, and real estate taxes. In addition, the audit amortized the total amount of the landlord's home improvement loan over a 10-year period despite the fact that the loan was actually being amortized over a five-year period. As these operating expenses were not properly considered by the DHCR, its determination should be annulled.
The Supreme Court erred, however, in making certain findings and remitting the matter to the DHCR for a hearing on limited issues. Having concluded that the audit was erroneously prepared, the court should have simply remitted the matter to the DHCR to reprocess the landlord's application for a certificate of eviction, rather than making its own findings and limiting the issues on remittitur (see, Matter of Ansonia Assocs. v. State Div. of Hous. Community Renewal, 147 A.D.2d 420). Bracken, J.P., Copertino, Joy and Altman, JJ., concur.