IN RE: Sidney EISENBERG (2009)

Order and judgment (one paper), Supreme Court, New York County (Paul G. Feinman, J.), entered July 5, 2007, denying the petition and dismissing the proceeding brought pursuant to CPLR article 78 to annul the determination of respondent New York State Division of Housing and Community Renewal (DHCR), dated July 3, 2006, which affirmed an order of the Rent Administrator deregulating petitioner's apartment based on his alleged default in answering a high income rent deregulation petition, unanimously affirmed, without costs.

Since petitioner failed to submit any objective proof that he mailed his answer to the landlord's deregulation petition, DHCR's determination that petitioner defaulted was neither arbitrary and capricious nor contrary to law (see Matter of Szaro v. New York State Div. of Hous. & Community Renewal, 13 A.D.3d 93, 786 N.Y.S.2d 37 [2004] ).   Petitioner's due process claim is unavailing.   To the extent, if any, we may take cognizance of petitioner's belated suggestion (first raised in his reply brief on this appeal) that the matter be remanded to DHCR to consider whether his default is excusable by reason of his alleged diminished capacity, we find that petitioner has failed to raise any substantial issue as to his capacity at the time of his default.

The Decision and Order of this Court entered herein on December 16, 2008 is hereby recalled and vacated (see M-221 decided simultaneously herewith).