IN RE: Application of Jacquelyn PAYNE

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

IN RE: Application of Jacquelyn PAYNE, Petitioner-Appellant, v. NEW YORK STATE DIVISION OF HOUSING AND COMMUNITY RENEWAL, et al., Respondents-Respondents.

Decided: October 30, 2001

NARDELLI, J.P., ANDRIAS, LERNER, SAXE, and MARLOW, JJ. John Smargiassi, for Petitioner-Appellant. Frances Nolan, Robert M. Olshever, for Respondents-Respondents.

Judgment, Supreme Court, New York County (Leland DeGrasse, J.), entered on or about December 12, 2000, which denied petitioner tenant's application to annul respondent State Division of Housing and Community Renewal's determination denying petitioner's rent overcharge complaint, and dismissed the petition, unanimously affirmed, without costs.

 Petitioner's argument that DHCR used an incorrect base rent amount would require examination of the subject unit's rental history going back more than four years prior to the filing of her rent overcharge complaint, in violation of Rent Stabilization Law (Administrative Code of City of N.Y.) § 26-516(a)(2) (see, Zafra v. Pilkes, 245 A.D.2d 218, 666 N.Y.S.2d 633;  see also, Matter of Silver v. Lynch,283 A.D.2d 213, 724 N.Y.S.2d 734;  Matter of Sessler v. New York State Div. of Hous. & Community Renewal, 282 A.D.2d 262, 722 N.Y.S.2d 864;  CPLR 213-a).   DHCR's finding that the base rent should be the rent that petitioner agreed to pay at the commencement of her occupancy was rationally based on the absence of any reviewable rent records prior to such agreement.