8904. GUALBERT ALVAREZ, plfres, AGAINST— BETH ABRAHAM HEALTH SERVICES def-ap — Mauro Lilling Naparty LLP, Woodbury (Katherine Herr Solomon of counsel), for ap — Pollack, Pollack, Isaac & De Cicco, New York (Michael H. Zhu of counsel), for res — JUDGMENT, SUPREME COURT, BRONX COUNTY (ALEXANDER W. HUNTER, JR., J.), ENTERED SEPTEMBER 28, 2011, UPON A JURY VERDICT, AWARDING PLAINTIFF DAMAGES IN THE AMOUNT OF $500,000 FOR PAST PAIN AND SUFFERING AND $250,000 FOR FUTURE PAIN AND SUFFERING OVER 42 YEARS, UNANIMOUSLY AFFIRMED, WITHOUT COSTS. DEFENDANTS FAILED TO PRESERVE THEIR ARGUMENT THAT THE JURY’S VERDICT WAS INCONSISTENT AS TO LIABILITY AND CULPABLE CONDUCT, AS THEY FAILED TO RAISE THE ARGUMENT BEFORE THE JURY WAS DISCHARGED (see Barry v. Manglass, 55 NY2d 803, 806 [1981]; Arrieta v. Shams Waterproofing, Inc., 76 AD3d 495, 496 [1st Dept 2010]). In any event, the jury’s verdict was consistent and can be reconciled with a reasonable view of the evidence (see Martinez v. New York City Tr. Auth., 41 AD3d 174, 175 [1st Dept 2007]). Further, the court’s interrogatory regarding “the skin care provided to the plaintiff” was unambiguous and consistent with the charge, evidence and applicable law (compare Plunkett v. Emergency Med. Serv. of N.Y. City, 234 AD2d 162, 163 [1st Dept 1996], with Rodriguez v. Budget Rent-A-Car Sys., Inc., 44 AD3d 216, 223 [1st Dept 2007]). WE FIND THE JURY’S AWARD FOR PAST PAIN AND SUFFERING APPROPRIATE. GIVEN PLAINTIFF’S RELATIVELY YOUNG AGE, AND IN LIGHT OF THE EVIDENCE THAT HIS ULCER MAY REOPEN IN THE FUTURE, WE DECLINE TO DISTURB THE JURY’S AWARD FOR FUTURE PAIN AND SUFFERING. THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. MAZZARELLI, J.P., MOSKOWITZ, DEGRASSE, MANZANET-DANIELS, CLARK, JJ. 8905. IN RE 315 EAST 72ND, STREET OWNERS, INC., petap, v. NEW YORK STATE DIVISION OF HOUSING AND COMMUNITY RENEWAL res-res — Borah, Goldstein, Altschuler, Nahins & Goidel, P.C., New York (Paul N. Gruber of counsel), for ap — Gary R. Connor, New York (Eu Ting-Zambuto of counsel), for New York State Division of Housing and Community Renewal, res — Himmelstein McConnell Gribben Donoghue & Joseph, New York (David Hershey-Webb of counsel), for Morton Drosnes, res — Order and judgment (one paper), Supreme Court, New York County (Joan B. Lobis, J.), entered January 19, 2012, which denied the petition seeking to annul the determination of respondent State of New York Division of Housing and Community Renewal (DHCR), dated June 6, 2011, denying petitioner’s application to deregulate a rent-stabilized apartment, and dismissed the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.
Supreme Court properly dismissed the petition seeking to annul DHCR’s denial of petitioners application for high-income rent deregulation. Contrary to petitioner’s contention, DHCR was not required to conduct any further investigation prior to reaching its determination (see e.g. Matter of Classic Realty v. New York State Div. of Hous. & Community Renewal, 298 AD2d 201 [1st Dept 2002]). The record before DHCR permitted it to rationally and reasonably find that respondent Morton Drosnes’ daughter, Carrie, had been an occupant of the apartment on a temporary basis only in the two years preceding service of the income certification form (ICF), and had vacated the unit in April 2008, approximately one year prior to the March 3, 2009 service of the ICF. The operative date for determining occupancy is the date when the ICF is served (see Matter of 103 E. 86th St. Realty Corp. v. New York State Div. of Hous. & Community Renewal, 12 AD3d 289, 290 [1st Dept 2004]; Matter of A.J. Clarke Real Estate Corp v. New York State Div of Hous. & Community Renewal (307 AD2d 841 [1st Dept 2003]). DHCR properly denied the petition for high income deregulation as Carrie’s income should not have been considered in the calculation of Drosnes’ total household income (see Matter of Chatsworth Realty Corp. v. New York State Div. of Hous. & Community Renewal, 56 AD3d 371 [1st Dept 2008]).
