The opinion
Williams, J. (dissenting).
While the requirements the Department of Buildings (DOB) imposed on petitioner may seem more like “a fixed, general principle” (Matter of Roman Catholic Diocese of Albany v New York State Dept. of Health, 66 NY2d 948, 951 [1985]) than “ad hoc decision making” (Matter of Alca Indus. v Delaney, 92 NY2d 775, 778 [1999]), DOB’s options were not limited to rulemaking (see e.g. Matter of Roman Catholic Diocese of Albany v New York State Dept. of Health, 109 AD2d 140, 148 [1985, Levine, J., dissenting in part], revd 66 NY2d 948 [1985], supra; see also NLRB v Bell Aerospace Co., 416 US 267, 294 [1974]; SEC v Chenery Corp., 332 US 194, 199-203 [1947]).
DOB’s and respondent’s interpretations of the Zoning Resolution are entitled to deference (see e.g. Appelbaum v Deutsch, 66 NY2d 975, 977 [1985]; Koultukis v Phillips, 285 AD2d 433, 436 [2001]). “It matters not whether, in close cases, a court would have, or should have, decided the matter differently” (Matter of Cowan v Kern, 41 NY2d 591 , 599 [1977]). Under these standards, this Court is constrained to find that respondent’s determination was neither arbitrary and capricious, nor irrational. Indeed, the DOB and respondent acted rationally in view of past enforcement difficulties with later (certificate of occupancy stage) submission of proof of current nexus with an educational institution, and in view of petitioner’s dubious and persistent efforts to evade preconstruction permit submission of such proof in favor of delaying compliance until the latter stages of the project.
Like the IAS court, I find Matter of Di Milia v Bennett ( 149 AD2d 592 [1989], lv denied 74 NY2d 610 [1989]) distinguishable because the issue in the instant proceeding is “whether petitioner has met the criteria for a college or school student dormitory use in the first instance” ( 12 Misc 3d 1183[A] , 2006 NY Slip Op 51392[U] , *5), not whether it will use the building illegally in the future.
Accordingly, I would affirm the judgment dismissing this proceeding seeking to annul respondent’s determination upholding the Department of Buildings’ objection No. 4 to petitioner’s proposed building.
*44 Marlow and Gonzalez, JJ., concur with Cattersón, J.; Tom, J.E, and Williams, J., dissent in a separate opinion by Williams, J.
Judgment, Supreme Court, New York County, entered on or about July 24, 2006, reversed, on the law, without costs, the petition granted to the extent of annulling respondent’s determination upholding an objection of the Department of Buildings to petitioner’s proposed building, and the matter remanded for further administrative action.