IN RE: WOODCREST MANAGEMENT

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

IN RE: WOODCREST MANAGEMENT, Petitioner-Appellant, v. NEW YORK STATE DIVISION OF HOUSING AND COMMUNITY RENEWAL, Respondent-Respondent.

Decided: May 29, 2003

TOM, J.P., SAXE, ELLERIN, WILLIAMS and MARLOW, JJ. Patrick K. Munson, for Petitioner-Appellant. Jan C. Rose, for Respondent-Respondent.

Judgment, Supreme Court, New York County (Edward Lehner, J.), entered July 5, 2002, which denied petitioner landlord's application to annul respondent Division of Housing and Community Renewal's determination fixing the fair market rent of the subject apartment and directing petitioner to refund to the tenants excess rent, and dismissed the petition, unanimously affirmed, without costs.

It appears that as a result of a recent amendment to the Rent Stabilization Code (9 NYCRR 2522.3[e][1][eff. Dec. 20, 2000] ), the requirements for the submission of comparable rents in a fair market rent appeal were relaxed, with the result that at the time respondent issued the PAR decision under review, its third such decision after two court remands, certain comparable rent data that respondent had previously rejected as legally insufficient qualified for consideration.   However, respondent refused to apply the amendment on the ground that it would cause the tenants undue hardship within the meaning of Rent Stabilization Code § 2527.7. Such refusal was not arbitrary and capricious where the owner was advised of his right to submit comparability data in 1993, but provided none until April 2000, and provided no explanation for this delay.