IN RE: Stanley SZARO (2004)

Order and judgment (one paper), Supreme Court, New York County (Faviola A. Soto, J.), entered on or about October 2, 2003, which denied and dismissed the petition brought pursuant to CPLR article 78 to annul the determination of respondent New York State Division of Housing and Community Renewal (DHCR), dated April 3, 2003, affirming an order of the Rent Administrator deregulating petitioner's apartment based on his alleged default in answering a luxury decontrol petition, unanimously affirmed, without costs.

Contrary to petitioner tenant's contention, the promulgation of Rent Stabilization Code [9 NYCRR] § 2531.4, which, in pertinent part, requires a tenant contesting a luxury decontrol petition to retain proof that an answer to the petition was served, lay within DHCR's broad mandate from the Legislature (see Rent Stabilization Assn. of New York City, Inc. v. Higgins, 83 N.Y.2d 156, 168, 608 N.Y.S.2d 930, 630 N.E.2d 626 [1993];  and see Matter of Muller v. New York State Div. of Hous. & Community Renewal, 263 A.D.2d 296, 305, 703 N.Y.S.2d 80 [2000], lv. denied 95 N.Y.2d 763, 715 N.Y.S.2d 216, 738 N.E.2d 364 [2000] ).   The record discloses that DHCR complied with Rent Stabilization Code § 2531.4, giving petitioner tenant appropriate notice of his obligation to retain proof of service on the front page of his answer form.   While petitioner maintains that a hearing was required to ascertain whether he did in fact mail his answer, and whether it was received and discarded by DHCR because it was not sent by the prescribed form of mail, he did not submit objective proof of mailing of any kind, such as a certificate of mailing, or a contemporaneous affidavit of service giving the date, time, place, content and circumstances of mailing.   Further, the tax returns now relied upon by petitioner are not included in the administrative record and should not be considered by this Court.   Under these circumstances, DHCR's determination was not arbitrary, capricious or contrary to law.