IN RE: 442 WEST 45TH STREET

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Supreme Court, Appellate Division, First Department, New York.

IN RE: 442 WEST 45TH STREET, INC., Petitioner-Appellant, v. NEW YORK STATE DIVISION OF HOUSING AND COMMUNITY RENEWAL, etc., Respondent-Respondent.

Decided: May 11, 2004

TOM, J.P., ANDRIAS, SAXE, SULLIVAN, MARLOW, JJ. Borah, Goldstein, Altschuler Schwartz & Nahins, P.C., New York (Jeffrey R. Metz of counsel), for appellant. Marcia P. Hirsch, New York (Dawn Ivy Schindelman of counsel), for respondent.

Order and judgment (one paper), Supreme Court, New York County (Paula J. Omansky, J.), entered on or about April 21, 2003, which denied the petition and dismissed the proceeding brought pursuant to CPLR article 78 to annul a determination by respondent New York State Division of Housing and Community Renewal (DHCR), dated September 19, 2002, that the subject apartment was not rent controlled, unanimously affirmed, without costs.

 Because petitioner did not raise the issue of the apartment's status under the rent laws in its response to the tenant's overcharge complaint and, indeed, had accepted the tenant's rent-controlled rent for the preceding 16 years, DHCR did not act arbitrarily and capriciously or in violation of law when it determined that petitioner's challenge to the tenant's rent control status was procedurally barred (see Roosevelt Islanders for Responsible Southtown Dev. v. Roosevelt Is. Operating Corp., 291 A.D.2d 40, 54, 735 N.Y.S.2d 83, lv. denied 97 N.Y.2d 613, 742 N.Y.S.2d 606, 769 N.E.2d 353).

 Even if respondent erroneously determined that the Rent Administrator's March 22, 2002 order, issued upon reconsideration of his October 23, 2001 order, extended the tenant's time to file a PAR from the earlier order, the expiration of the statutory time period did not preclude respondent from determining that the Rent Administrator's orders deeming the subject apartment to be rent stabilized should be revoked by reason of an irregularity in a vital matter.

We have considered petitioner's remaining arguments and find them unavailing.