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


Decided: March 28, 2006

NARDELLI, J.P., SWEENY, McGUIRE, MALONE, JJ. Kucker & Bruh, LLP, New York (Patrick K. Munson of counsel), for appellant. David B. Cabrera, New York (Patrice Huss of counsel), for respondent.

Judgment, Supreme Court, New York County (William A. Wetzel, J.), entered August 19, 2005, which denied petitioner landlord's application to annul respondent DHCR's determination that the subject apartment is rent stabilized, and dismissed the petition, unanimously affirmed, without costs.

 Respondent did not exceed its jurisdiction in determining the regulatory status of the subject apartment.   Where, as here, a building is converted pursuant to a non-eviction plan, the apartments occupied by existing non-purchasing tenants remain subject to rent regulation (see Federal Home Loan Mtge. Corp. v. DHCR, 87 N.Y.2d 325, 331, 639 N.Y.S.2d 293, 662 N.E.2d 773 [1995] ).   While the Attorney General is granted the authority to approve the conversion of buildings to cooperative status, DHCR retains the authority to administer the rent laws with respect to the remaining regulated apartments (General Business Law § 352-eeee[5];  see Council for Owner Occupied Hous. v. Koch, 119 Misc.2d 241, 462 N.Y.S.2d 762 [1983], affd. 61 N.Y.2d 942, 475 N.Y.S.2d 279, 463 N.E.2d 620 [1984] ).   On the merits, respondent's determination that the tenants, husband and wife, were in possession of the subject apartment before the Attorney General's acceptance of the conversion plan for filing is amply supported by documentary evidence of occupancy, including a rent bill identifying the husband by name and the apartment by number, a letter from Con Edison addressed to the husband at the apartment, a voter registration card indicating the husband's occupancy of the apartment as of the time he claims, and an initial apartment registration dated after the plan's acceptance for filing indicating the tenants' names, a lease expiration date two years after the tenants claim they took occupancy, and the rent stabilized status of the apartment.   This evidence clearly preponderates over the sole document relied upon by petitioner, an affidavit filed by the prior owner in connection with the conversion plan listing the tenants who had completed subscription agreements to purchase their apartments and indicating that the subject tenants took physical occupancy 20 days after the plan's acceptance.   Since the Attorney General had no obligation to verify the accuracy of the statements contained in the offering plan (see Matter of Whalen v. Lefkowitz, 36 N.Y.2d 75, 78, 365 N.Y.S.2d 150, 324 N.E.2d 536 [1975];  State of New York v. Fashion Place Assoc., 224 A.D.2d 280, 282, 638 N.Y.S.2d 26 [1996], lv. dismissed 89 N.Y.2d 917, 653 N.Y.S.2d 920, 676 N.E.2d 502 [1996] ), acceptance of the plan for filing did not constitute a finding by the Attorney General that the tenants moved into the apartment on the date indicated in plan documents.   We have considered and rejected petitioner's remaining arguments.