Opinion
November 1, 1990
Appeal from the Supreme Court, New York County (Edith Miller, J.).
The Attorney-General is required to reject an offering plan if more than 10% of the apartments in the building are "long-term vacancies", defined as apartments vacant for more than five months prior to the submission date of the plan (General Business Law § 352-eeee [e]). Here, petitioner does not dispute that four apartments out of the 46 units in the building are long-term vacancies. The Attorney-General found that six apartments are long-term vacancies. It is undisputed that five apartments would be more than 10% of the total number of units in the building.
Competent evidence before the Attorney-General showed that one apartment was occupied by a man whose daughter, more than five months prior to the submission date, contacted the sponsor by telephone and unequivocally informed the petitioner that her father was in a nursing home and would not be returning to the apartment. Competent evidence also showed that another apartment was unoccupied for a substantial portion of the five months, and was subleased without authorization by a rent-stabilized tenant not in primary residence for the remainder of the five-month period. Accordingly, the Attorney-General had a rational basis for determining that both apartments were long-term vacancies (Matter of Harbor Tower v. Abrams, 85 A.D.2d 558, affd. 56 N.Y.2d 740).
We decline to reach arguments predicated on facts presented for the first time to the article 78 court (see, Matter of Fanelli v. New York City Conciliation Appeals Bd., 90 A.D.2d 756, affd. 58 N.Y.2d 952).
Concur — Murphy, P.J., Carro, Rosenberger and Smith, JJ.