Opinion
5468
December 4, 2001.
Judgment, Supreme Court, New York County (Beverly Cohen, J.), entered on or about March 9, 1999, which denied petitioners landlords' application to annul respondent Division of Housing and Community Renewal's determination of a rent overcharge and imposition of treble damages, and dismissed the petition, unanimously affirmed, without costs.
Stuart R. Shaw, for petitioners-appellants.
Roderick J. Walters, for respondent.
Rosenberger, J.P., Nardelli, Mazzarelli, Wallach, Marlow, JJ.
The court-ordered stipulation of settlement of a prior tenant's overcharge complaint, on which petitioners rely to rebut the presumption of willfulness inherent in DHCR's finding of an overcharge in this proceeding (see, Matter of Hargrove v. DHCR, 244 A.D.2d 241, 242), was not raised before DHCR or the motion court, and we decline to review it (see, Matter of Featherstone v. Franco, 95 N.Y.2d 550, 554). We have reviewed and rejected petitioners' other arguments. The record does not support petitioners' assertion that DHCR's files of various claims made by various tenants in petitioner's building contain all of the documents necessary to support petitioners' claims herein. In any event, it was not the Rent Administrator's responsibility to go through these files of past proceedings involving petitioners' building in order to glean documents necessary to establish petitioners' arguments. The delay in processing the PAR was inordinate but not prejudicial, and therefore does not require vacatur of DHCR's determination (see, Matter of Harris Assocs. v. deLeon, 84 N.Y.2d 698, 703). The four-year limitation on respondent's review of rental history contained in Rent Stabilization Law (Administrative Code of City of NY) § 26-516, as amended, is inapplicable to the instant complaint filed prior to April 1, 1984 (Matter of Mengoni v. DHCR, 97 N.Y.2d 630, 2001 N.Y. LEXIS 3342; Matter of Peppie Realty Corp. v. DHCR, 265 A.D.2d 173). DHCR properly disregarded the stipulation entered into by the parties since it was not executed until after the Rent Administrator's determination, and was not approved by either DHCR or the court (Rent Stabilization Code [9 NYCRR] § 2520.13; see, Matter of 47-40 41st Realty Corp. v. DHCR, 225 A.D.2d 547). DHCR's default calculation for determining the legal rent was rationally based on the lowest rent for an apartment in the same line (see, Matter of 61 Jane St. Assocs. v. CAB, 108 A.D.2d 636, affd 65 N.Y.2d 898; Matter of Greenthal Co. v. DHCR, 126 Misc.2d 795, 800). Respondent did not violate the 60-day rule of 22 NYCRR 202.48.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.