ANIL C. SINGH, J.

Petitioner Mapama Corporation moves pursuant to Article 78 of the CPLR to set aside a determination by the New York City Loft Board ("Loft Board") dated May 20, 2010, denying its request for an extension to legalize loft units for residential occupancy and for an order directing the Loft Board to grant an extension to a date certain. The Loft Board opposes the petition.

This matter involves an interim multiple dwelling owned by petitioner at 545 Broadway in Manhattan that is subject to Article 7-C of the Multiple Dwelling Law. Article 7-C, known as the "Loft Law," was promulgated in 1982 and regulates the occupancy of commercial space that was unlawfully converted to residential use. The Loft Law requires owners of interim multiple dwellings to comply with the Multiple Dwelling Law by obtaining residential certificates of occupancy.

Section 284 of the Multiple Dwelling Law establishes a schedule that an owner must comply with to obtain a residential certificate of occupancy. An owner of an interim multiple dwelling is required to file an alteration application within nine months of the effective date of the act and to take "all reasonable and necessary steps" to obtain an alteration permit within twelve months. In addition, an owner is required to comply with safety and fire protection standards for the residential portions of the building within eighteen months of obtaining an alteration permit. The Loft Board may upon "good cause shown" grant owners two extensions "to obtain a certificate of occupancy for periods not to exceed twelve months each." (Section 284(1) of the Multiple Dwelling Law).

The Loft Board has issued rules and regulations governing its procedures and powers under Article 7-C of the Multiple Dwelling Law pursuant to Section 1-02 of Title 29 of the Rules of the City of New York (RCNY). Section 2-01(b)(1) provides that an application for an extension may not be filed after the deadline for an extension has passed. Under section 2-01(b)(2), the Loft Board will grant an extension only where "the necessity for the extension arises from conditions or circumstances beyond the owner's control, and that the owner has made good faith efforts to meet the code compliance timetable requirements." Documentary evidence must corroborate the existence of conditions beyond the owner's control. The extension application must be filed on a form required by the Loft Board served on the occupants of interim multiple dwelling units specifying the date to which the applicant seeks to have the deadline extended. [29 RCNY Section 2-01(b)(4)].

With respect to 545 Broadway, the Loft Board brought an administrative proceeding against petitioner in 2001 for failure to legalize the premises. That proceeding was settled pursuant to a stipulation dated June 28, 2001, wherein the owner agreed to "diligently undertake all legalization work required" and to comply with fire and safety requirements for the building by August 1, 2002, and to apply for a Certificate of Occupancy by September 16, 2002 (Paragraph 7). It was agreed that if there were unforseen circumstances beyond the owner's control, petitioner could seek an extension in accordance with the Loft Board's rules and regulations (Paragraph 10).

Petitioner failed to legalize its interim multiple dwelling in accordance with the stipulated schedule. In May 2004, the owner made an application for a retroactive extension. The administrative law judge granted a retroactive extension from November 2001 on August 26, 2005. This determination was reversed by the Loft Board on February 16, 2006, which resulted in the Article 78 proceeding before Justice Stone. Justice Stone granted a retroactive extension, on default, from November 30, 2001, until May 1, 2007.1

On April 17, 2007, prior to the expiration of the extension granted by Justice Stone, Robert Tan, an architect who was recently retained by petitioner, by letter requested a three or four month extension of the May 1, 2007 deadline. The reason given for the request was that he had taken over the legalization process from another architect. Additional time was needed to complete the drawings and narrative statement. The letter was not served on the tenants in the building.

The Loft Board did not respond to Mr. Tan's request for an extension, and on November 13, 2009, petitioner's counsel requested a decision on the extension request. The Loft Board responded on December 1, 2009, that it had no record of an extension application filed on April 17, 2007. The letter request does not constitute an extension application. A request for an extension must be made by application. A formal extension application was filed by petitioner on December 22, 2009, requesting an extension to obtain a final certificate of occupancy by July 2011.

The Loft Board Executive Director denied the extension on the ground that pursuant to RCNY Section 2-01(b)(1), the Loft Board may not grant an application seeking an extension made after the deadline had passed. The only exception to this rule was if the applicant is a new owner. Furthermore, the Loft Board stated that petitioner had failed to demonstrate that the need for an extension was caused by conditions beyond the owner's control and that good-faith efforts had not been made to come into compliance. Petitioner appealed the denial.

On May 3, 2010, the Loft Board's Deputy General Counsel recommended that the appeal be denied as the application for an extension did not meet the statutory criteria necessary to grant an extension. This recommendation was adopted by the Loft Board on May 20, 2010.

In this Article 78 proceeding, petitioner urges that the Loft Board's denial of its request for an extension is arbitrary and capricious. Petitioner made good-faith efforts to achieve compliance, and the delays are for reasons outside its control. Code compliance was commenced in 1983. However, a bankruptcy filing by the owner resulted in a delay until the end of 1987. Further delay was caused by disputes with the tenants and their architects regarding code compliance.

The petitioner's first architect was fired in October 2000 because he was unresponsive to the owner's requests. After the Loft Board withdrew its non-compliance proceeding based on the parties' stipulation, the tenants in 2002 interfered unreasonably with the owner's attempt to comply, resulting in litigation before the Loft Board. There was further delay in 2004 as a result of the Loft Board's denial of the owner's application for a retroactive extension requiring litigation which culminating in Justice Stone's order granting an extension until May 1, 2007.

Petitioner maintains that since the filing of its first Article 78 proceeding in 2006, it has made good-faith efforts to comply with the code's requirements. Those efforts have been thwarted by its architect's failure to make requested corrections to plans. Finally, in 2007, petitioner retained Robert Tan as the architect, who made the April 17, 2007 request for an extension in order to file new plans. Thus, the delay was caused by the architect and was beyond the owner's control.

Mr. Tan never received notice from the Loft Board that the April 17, 2007 request for an extension was denied or not in proper form. Had notice been received from the Loft Board, a new application would have been timely filed. Petitioner states that it continued its good-faith compliance efforts. Mr. Tan visited the site, prepared amended plans and other compliance documents, and filed an amended narrative statement with the Loft Board in January 2008.

On July 17, 2008, Mr. Tan attended a conference at the Loft Board with the tenants, their architects and attorneys, and the owner and its attorneys to resolve the remaining disputed compliance issues. The main issue of contention that was left concerned locks for the elevators. Petitioner attributes much of the delay in code compliance to having to wait for the Loft Board, the Landmarks Preservation Commission and the Department of Buildings to act. Meetings were to be held shortly after the July 17, 2008 meeting but did not take place until December 9, 2008. Further delay is attributed to the tenants, their architects and attorneys resolving disputed items.

Petitioner states that in 2009, Mr. Tan continued to work towards legalization of the building. The issue with respect to locking the elevators was resolved by the Department of Buildings. From June to October 2009, Mr. Tan prepared an application for the Landmarks Preservation Commission and met with the Department of Buildings to resolve any remaining objections and obtain approval by the Landmarks Preservation Commission. Petitioner maintains that the plans will be approved by February 2011 and anticipates obtaining a work permit in March 2011.

Discussion

An administrative determination is arbitrary or capricious if made "without sound basis in reason" and "taken without regard to the facts." (Pell v. Board of Education, 34 N.Y.2d 222, 231 [1974]). Courts may not substitute their judgment if a rational basis supports the determination (Purdy v. Kreisberg, 47 N.Y.2d 354 [1979]). A determination is "arbitrary and capricious" if the court finds that the conclusion drawn from the facts adduced at the hearing or otherwise, or the administrative action taken based on them, is untenable as a matter of law (Siegel, NY Prac section 561, at 967 [4th ed]). While judicial review must be meaningful, it is not the role of the courts to weigh the desirability of any action or to choose among alternatives (6 NY Jur.2d Article 78 sec. 13). "The judicial function is at an end once it has been determined that an agency's conclusion has a sound basis in reason" (6 NY Jur.2d Article 78 sec. 15).

Here, the Loft Board's determination denying petitioner's request for an extension has a rational basis. 29 RCNY Section 2-01(b)(4) requires that the extension application be filed on a Loft Board Form and served on the tenants. The letter request did not meet either requirement. Mr. Tan's terse April 17, 2007 letter simply requests an extension. The letter fails to state what steps, if any, had been taken by the owner to legalize the building prior to the May 1, 2007 deadline established by Justice Stone. Nor was any documentary evidence submitted with the letter corroborating the existence of conditions beyond the owner's control, as required by Section 2-01(b)(2).

Petitioner complains that, had the Loft Board responded to the letter, it could have filed a timely application. The court notes that petitioner cannot claim ignorance of the Loft Board's regulations. Under the 2001 stipulation, any extension had to be filed in accordance with rules and regulations of the Loft Board. In 2004, petitioner made a request for an extension before the Loft Board, spawning the first Article 78 proceeding.

The owner waited until December 2009 — over two years after Justice Stone granted an extension until May 1, 2007 — to make a formal application for an extension. The request was untimely, as the application for an extension may not be filed after the deadline for an extension has passed [29 RCNY Section 2-01(b)(1)]. Nor does the application for an extension state what steps were taken, if any, by the owner towards legalization of the premises from the filing of the 2006 Article 78 proceeding before Justice Stone until May 1, 2007.

Instead, the owner blames its own architects, the tenants, their architects and attorneys, the Loft Board, the Landmarks Preservation Commission and the Department of Buildings for delay. The owner's architects are agents of the petitioner and are within the control of the owner. Petitioner's conclusory assertion that the delay was caused by outside entities is not supported by any documentary evidence establishing that the tenants or governmental agencies are responsible for delay. Nor has the owner shown what good-faith efforts it has taken to meet the code compliance timetable requirements as required by Section 2-01(b)(2).

The Loft Law was enacted by the New York State Legislature to address a serious public emergency and to protect the public health, safety and general welfare by requiring space that had been converted illegally from commercial to residential use to meet minimum standards of housing maintenance of health, safety and fire protection (MDL Section 280). In this matter, the owner commenced the legalization process in 1983. Almost three decades later, the owner still does not have a residential certificate of occupancy. The failure to comply with the statutory and regulatory mandates frustrates the purpose of the Loft Law.

The petition is denied.

The foregoing constitutes the decision and order and judgment of the court.