Opinion
February 24, 2000
Order, Supreme Court, Bronx County (Lottie Wilkins, J.), entered on or about January 4, 1 999, which denied petitioner landlord's application to annul respondent DHCR's determination in a fair market rent proceeding directing petitioner to refund to the tenant all excess rent collected by it as well as two prior landlords since the tenant moved into the apartment, unanimously affirmed, without costs.
Heddyeh P. Broumand for the Petitioner-Appellant.
Dawn Ivy Schiller for Respondent-Respondent.
SULLIVAN, P.J., NARDELLI, WALLACH, LERNER, BUCKLEY, JJ.
Although petitioner purchased the subject premises in 1991, only a few months before the District Rent Administrator fixed the fair market rent and directed petitioner and two prior landlords to refund to the tenant the excess rent that the tenant paid to each since moving into the apartment in 1985, it was not arbitrary and capricious for DHCR, on petitioner's PAR decided in 1998, to direct petitioner to refund the excess rent collected by the prior landlords as well as by itself. Such direction is consistent with respondent's policy, in force since 1993, of entitling a tenant to collect rents ordered refunded by reason of an overcharge determination entirely from the current landlord (see, Matter of Greenberg Real Estate v. Division of Hous. Community Renewal, 258 A.D.2d 313, 314). Nor does petitioner, who should have been escrowing any rent it was collecting over and above the fair market rent as determined by the District Rent Administrator, show prejudice or hardship as a result of the delay in the decision on its PAR. Concerning the rental history reviewed by DHCR, we note that the tenant was never served with an initial legal regulated rent as required by Rent Stabilization Law (Administrative Code of City of NY) § 26-513(d), and reject petitioner's contention that DHCR's four-year review should have run from 1991, when petitioner received notice of the conversion of the proceeding from an overcharge to a fair market proceeding, rather than from 1985, when the tenant filed the overcharge complaint (see, Matter of Jemrock Realty Co. v. State Div. of Hous. Community Renewal, 169 A.D.2d 679, lv denied 78 N.Y.2d 852; cf., Matter of McKenzie v. Mirabal, 155 A.D.2d 194, 201; 78/79 York Ave. Assocs. v. Rand, 175 Misc.2d 960, 967, affd 180 Misc.2d 316).
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.