Opinion
February 26, 1991
Appeal from the Supreme Court, New York County (Edith Miller, J.).
Petitioner is the landlord of 166 2nd Avenue, apart. 4B. The tenant, Adam Gewanter, took possession of the apartment pursuant to a 2 year lease commencing May 1, 1979. On March 26, 1984 the tenant filed a Fair Market Rent Appeal.
To determine the lawful rent, comparisons had to be made with other apartments. Since the time the Fair Market Rent Appeal was filed, the Rent Stabilization Code has changed the manner of determining comparable rents. Of the rents submitted for comparison purposes only one apartment, 9G, was considered because it was the only one not rent controlled. The decision not to use apartments subject to rent control in the comparability study is rationally based. (Matter of Ullman Estates v New York City Conciliation Appeals Bd., 97 A.D.2d 296, affd 62 N.Y.2d 758. ) Furthermore this Court has consistently held that the DHCR may rationally apply the law in existence at the time the complaint was filed (Matter of Lavanant v State Div. of Hous. Community Renewal, 148 A.D.2d 185). An agency's application and construction of statutes and regulations entrusted to its administration are entitled to judicial approval, where as here, they have a rational basis. (Matter of Salvati v Eimicke, 72 N.Y.2d 784, rearg denied 73 N.Y.2d 995.)
Concur — Murphy, P.J., Rosenberger, Wallach, Kupferman and Smith, JJ.