IN RE: Application of Stuart R. LEVINE (1997)

Judgment, Supreme Court, New York County (Elliott Wilk, J.), entered March 20, 1997, dismissing petitioner's tenant's application pursuant to CPLR article 78 to annul respondent agency's award to intervenor landlord of a major capital improvement rent increase, unanimously affirmed, without costs.

The petition was properly dismissed on the ground that the evidence petitioner relies on was offered for the first time in his Petition for Administrative Review although it had been available to him for two years and could have been submitted to the Rent Administrator (9 NYCRR 2529.6;  Matter of Charles Birdoff & Co. v. New York State Div. of Hous. & Community Renewal, 204 A.D.2d 630, 612 N.Y.S.2d 418;  Matter of 985 Fifth Ave. v. New York State Div. of Hous. & Community Renewal, 171 A.D.2d 572, 574-575, 567 N.Y.S.2d 657, lv. denied 78 N.Y.2d 861, 576 N.Y.S.2d 219, 582 N.E.2d 602).

MEMORANDUM DECISION.