IN RE: Application of MARK GREENBERG REAL ESTATE (1999)

Order, Supreme Court, New York County (Bruce Allen, J.), entered June 19, 1998, which denied the petition, brought pursuant to CPLR article 78, challenging respondent's determination that there had been a rent overcharge and that a rent refund was accordingly due from petitioner to the tenant complainant, unanimously affirmed, without costs.

 The determination of respondent Division of Housing and Community Renewal (DHCR) that section 33 of The Rent Regulation Reform Act of 1997 (RRRA), amending Rent Stabilization Law (RSL) § 26-516(a), was inapplicable to the instant Fair Market Rent Appeal proceeding was rationally based.   Pursuant to RRRA § 33, amended RSL § 26-516 precludes examination of the rental history of a housing accommodation prior to the four-year period preceding the filing of a complaint “pursuant to this subdivision” (RSL § 516 [a][2] ).   However, since § 26-516 only became effective April 1, 1984 (Omnibus Housing Act of 1983, L.1983, c. 403, §§ 14, 64), complaints filed prior to April 1, 1984, like the one at bar, are not complaints pursuant to § 26-516(a), and RRRA § 33 is by its terms inapplicable to them (see, Gattiboni v. Aponte, 188 A.D.2d 434, 592 N.Y.S.2d 1;  Lavanant v. State Div. of Housing & Community Renewal, 148 A.D.2d 185, 544 N.Y.S.2d 331).   Accordingly, respondent's review of the rental history of the subject apartment prior to the four years preceding the filing of the overcharge complaint was rationally based.

 Although petitioner only purchased the premises to which the subject overcharge finding relates in May 1985, it was not arbitrary and capricious for respondent to direct petitioner to refund excess rents collected by the prior landlord between April 1, 1984 and May, 1985.   Respondent's direction is consistent with its policy, in force since 1993, of entitling a tenant to collect rents ordered refunded by reason of an overcharge determination from the current landlord.   We have previously noted the inequity of requiring a tenant prevailing upon an overcharge complaint to recover from a prior landlord (see, Polanco v. Higgins, 175 A.D.2d 729, 572 N.Y.S.2d 916).

We have reviewed petitioner's related arguments and find them unavailing.

MEMORANDUM DECISION.