IN RE: Application of NELSON MANAGEMENT GROUP (1999)

Order, Supreme Court, New York County (Karla Moskowitz, J.), entered September 1, 1998, which, in a CPLR article 78 proceeding by petitioner receiver challenging respondent DHCR's award of a rent overcharge and dismissal of petitioner's petition for administrative review (PAR) for untimeliness, granted respondent's cross motion to dismiss the petition, unanimously affirmed, without costs.

 Petitioner's untimely filing of its PAR more than 35 days after the issuance of the overcharge order constituted a failure to exhaust administrative remedies justifying dismissal of petitioner's subsequent article 78 proceeding (see, Matter of Dowling v. Holland, 245 A.D.2d 167, 169, 666 N.Y.S.2d 585, citing, inter alia, Matter of Lipes v. State, DHCR, 174 A.D.2d 571, 570 N.Y.S.2d 684).   Petitioner's denial of receipt or other notice of the order until informed of it by the tenant's attorney is insufficient to overcome the presumption of receipt raised by respondent's evidence of its routine mailing procedures (see, id. at 169, 666 N.Y.S.2d 585, citing, inter alia, Jonathan Woodner Co. v. Higgins, 179 A.D.2d 444, 578 N.Y.S.2d 561, lv. denied 80 N.Y.2d 756, 588 N.Y.S.2d 824, 602 N.E.2d 232).

MEMORANDUM DECISION.