IN RE: Application of Matthew BRINCKERHOFF (2000)

Judgment, Supreme Court, New York County (Beverly Cohen, J.), entered March 6, 2000, which, in an article 78 proceeding brought by petitioners rent stabilized tenants challenging respondent DHCR's dismissal of their rent overcharge complaint as time-barred, granted respondent's cross motion to dismiss the petition for failure to state a cause of action, unanimously affirmed, without costs.

 The four-year Statute of Limitations applicable to both administrative and judicial rent overcharge claims (Rent Stabilization Law [Administrative Code of City of N.Y.] § 26-516[a][2];  CPLR 213-a), by its terms, commences to run with the “first overcharge alleged”.   Since the first overcharge alleged by petitioners occurred on August 1, 1984, and their overcharge proceeding before DHCR was not commenced until April 6, 1989, the proceeding was time-barred (see, Bragston Realty Corp. v. Dixon, 180 Misc.2d 1018, 1020, 694 N.Y.S.2d 878, citing, inter alia, Zafra v. Pilkes, 245 A.D.2d 218, 666 N.Y.S.2d 633).   Petitioners' fraud claim is incidental to their overcharge claim, and therefore was also time-barred (see, Daniel v. DHCR, 179 Misc.2d 452, 462, 683 N.Y.S.2d 404), and their equitable estoppel claim, that the landlord's failure to register the apartment caused them to delay bringing a timely overcharge proceeding, has no support in the record.   We also reject petitioners' claim that the retroactive application of the amendments to Rent Stabilization Law § 26-516(a)(2), which effectively shortened the limitations period for their already pending rent overcharge complaints, denied them due process (see, id., at 463-465, 683 N.Y.S.2d 404;  Matter of Gelston v. DHCR, 177 Misc.2d 431, 438, 676 N.Y.S.2d 765;  cf., Zafra v. Pilkes, supra ).

MEMORANDUM DECISION.