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

Sophia RAMLIE, Plaintiff-Appellant, v. SOUFER FAMILY LLC, et al., Defendants-Respondents.

Decided: October 25, 2001

ROSENBERGER, J.P., WILLIAMS, MAZZARELLI, RUBIN, and BUCKLEY, JJ. Robert Grimble,Robin LoGuidice, for Plaintiff-Appellant. Jeffrey Turkel, for Defendants-Respondents.

Order, Supreme Court, New York County (Edward Lehner, J.), entered March 22, 2001, which, inter alia, granted defendant landlord's motion for summary judgment dismissing plaintiff tenant's cause of action for a rent overcharge, without prejudice to reinstatement upon completion of a fair market rent appeal, unanimously affirmed, without costs.

The 1990 and 1991 registrations of the subject apartment as rent stabilized were clearly clerical errors committed by the prior owner, since the same tenant thereafter continued to occupy the apartment at the same rent control rate that was listed in 1984, the first year of registration.   Thus, there is no question that plaintiff was the apartment's first rent stabilized tenant.   Accordingly, plaintiff cannot assert a claim for rent overcharge, but instead must file a fair market rent appeal with the Division of Housing and Community Renewal (Rent Stabilization Code [9 NYCRR] § 2521.1[a][1] );  Rent Stabilized Law [Administrative Code of City of N.Y.] § 26-513;  (see, Matter of Acunto v. State Div. of Hous. & Community Renewal, 269 A.D.2d 169, 702 N.Y.S.2d 811, lv. denied 95 N.Y.2d 767, 719 N.Y.S.2d 647, 742 N.E.2d 123).   To the extent that Smitten v. 56 MacDougal St. Co., 167 A.D.2d 205, 561 N.Y.S.2d 585 holds that a landlord's failure to register an apartment as rent stabilized results in an initial legal regulated rent equal to the last rent under rent control, such holding was overruled by subsequently enacted amendments to Rent Stabilization Law § 26-517(e) (see, Murray v. Morrison, 181 Misc.2d 209, 214, 695 N.Y.S.2d 255).

We have considered and rejected plaintiff's other contentions.

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