
    In the Matter of 1668 Realty Assocs., Respondent, v Division of Housing and Community Renewal, Appellant.
    [594 NYS2d 313]
   —In a proceeding pursuant to CPLR article 78, inter alia, to review a determination of the respondent Division of Housing and Community Renewal, dated June 19, 1990, which upheld an order issued by the District Rent Administrator that the petitioner had reduced building-wide services to tenants residing at 1668 West 6th Street, and that a reduction in rent building-wide was warranted, the appeal is from (1) a judgment of the Supreme Court, Kings County (Held, J.), dated August 28, 1990, which granted the petition and annulled the rent reduction order, and (2) as limited by the appellant’s brief, from so much of an order of the same court, dated October 2, 1990, as denied that branch of the appellant’s motion which was for renewal.

Ordered that the order is reversed insofar as appealed from, as a matter of discretion, without costs or disbursements, the motion for renewal is granted, upon renewal, the judgment dated August 28, 1990, is vacated, and the matter is remitted to the Supreme Court, Kings County, for a new determination of the proceeding, on the merits; and it is further,

Ordered that the appeal from the judgment is dismissed as academic, without costs or disbursements, in light of our determination on the appeal from the order.

The tenants of the petitioner’s building brought a complaint with the appellant Division of Housing and Community Renewal (hereinafter the DHCR), alleging a reduction in required services. After an inspection, the DHCR found that certain conditions in the building required a building-wide reduction in rent. The petitioner’s petition for administrative review was denied by the DHCR.

Thereafter, the petitioner brought the instant proceeding to review the rent reduction order as arbitrary and capricious. The DHCR appeared, and asked the court to remit the case to it for further proceedings, because it had lost the administrative review file and, therefore, could not answer the petition on the merits. The Supreme Court, however, summarily granted the petition and annulled the rent reduction order. Shortly thereafter, the DHCR found its administrative review file and moved to renew. The court denied that motion.

The DHCR did not evince an intentional failure to respond, and was seeking an eventual determination on the merits. Accordingly, under Matter of Abrams v Kern (35 AD2d 971), we conclude that the Supreme Court improvidently exercised its discretion in refusing to consider the administrative review file, and in declining to review the case on the merits. Accordingly, we grant renewal, vacate the judgment, and remit the matter to the Supreme Court, Kings County, for a determination on the merits. Thompson, J. P., Rosenblatt, Miller and Ritter, JJ., concur.  