IN RE: Application of 7 WEST 87TH STREET (2002)

Order, Supreme Court, New York County (Marcy Friedman, J.), entered September 11, 2001, which denied petitioner landlord's application to annul so much of respondent's Division of Housing and Community Renewal's determination as found a rent overcharge, unanimously affirmed, without costs.

Petitioner's predecessor (herein, along with petitioner, the “landlord”) imposed a rent increase for improvements allegedly made to the subject apartment just before the complaining tenants moved in.   As proof thereof, the landlord submitted a contractor's affidavit, but, when the tenants denied most of the improvements described in the affidavit, the Rent Administrator asked the landlord for copies of canceled checks showing payment to the contractor.   The landlord did not produce such checks, whereupon the Rent Administrator rolled back most of the rent increase imposed by the landlord and ordered a refund of the excess rent paid.   On its PAR, the landlord submitted another affidavit from the contractor that, unlike the first, itemized the improvements and assigned a price to each item, but DHCR refused to consider it.   We reject the landlord's argument that such refusal was arbitrary, and that the record lacks a rational basis for finding that it failed to meet its “burden ․ to justify the increase sought by presenting documentary support therefor” (Matter of 985 Fifth Ave. v. DHCR, 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).   Judicial deference is due DHCR's finding that the contractor's affidavit submitted to the Rent Administrator, which did not purport to break down the cost of each improvement and can be read to describe at least some work in the nature of normal maintenance for which a rent increase might not be allowable, fell short of its purpose to show improvements justifying a rent increase (see, Matter of Linden v. DHCR, 217 A.D.2d 407, 629 N.Y.S.2d 32;  Matter of Birdoff & Co. v. DHCR, 204 A.D.2d 630, 612 N.Y.S.2d 418;  Matter of Ista Mgmt. v. DHCR, 161 A.D.2d 424, 425, 555 N.Y.S.2d 724).   The landlord's argument that it was arbitrary to demand six-year-old checks was rationally rejected on the ground that the tenants first disputed the rent less than a year after the alleged improvements were made.   Under the circumstances, it cannot be said that it was arbitrary of DHCR not to inspect the apartment (9 NYCRR 2527.5[b] ).  Nor was it arbitrary to reject the supplemental contractor's affidavit first submitted on the PAR where the only reason given by the landlord for not having presented it to the Rent Administrator is that it could not have known that the contractor's first affidavit was inadequate until after the Rent Administrator's decision (9 NYCRR 2529.6;  see, Matter of 985 Fifth Ave. v. DHCR, supra;  Matter of Birdoff & Co. v. DHCR, supra;  compare, Matter of Clermont York Assocs. v. Lynch, 271 A.D.2d 262, 707 N.Y.S.2d 44, lv. denied 95 N.Y.2d 766, 716 N.Y.S.2d 640, 739 N.E.2d 1145).