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

IN RE: Kenneth FRIEDMAN, Petitioner-Appellant, v. NEW YORK STATE DIVISION OF HOUSING AND COMMUNITY RENEWAL, et al., Respondents-Respondents.

Decided: March 24, 2009

SAXE, J.P., FRIEDMAN, SWEENY, RENWICK, FREEDMAN, JJ. Santo Golino, New York, for appellant. Gary R. Connor, New York (Aida P. Reyes of counsel), for DHCR, respondent. Caraballo & Mandell, New York (Dolly Caraballo of counsel), for Larry Yakata, respondent.

Order, Supreme Court, New York County (Judith J. Gische, J.), entered March 31, 2008, which dismissed the petition brought pursuant to CPLR article 78 seeking to annul the determination of respondent Division of Housing and Community Renewal (DHCR), dated October 25, 2007, denying petitioner landlord's petition for administrative review of a Rent Administrator's order which determined that petitioner failed to timely offer respondent tenant a renewal lease, directed that petitioner offer an amended renewal lease commencing July 1, 2006 and based the rent on the 2006 rent guidelines (Rent Guidelines Board Order # 37), unanimously affirmed, without costs.

There exists no basis to disturb DHCR's credibility-based finding that petitioner failed to establish that his predecessor timely tendered a renewal lease to the tenant in 2005, or that the tenant had not made a conscious decision about the commencement date of the untimely renewal offered (see e.g. Matter of 201 E. 81st St. Assoc. v. New York State Div. of Hous. & Community Renewal, 288 A.D.2d 89, 733 N.Y.S.2d 23 [2001] ).   Accordingly, since the lease was not renewed until April 1, 2006, the determination to direct petitioner to issue an amended renewal commencing July 1, 2006 and to apply the 2006 guideline rent increases to that lease was rationally based (see Rent Stabilization Code [9 NYCRR] § 2523.5[c][1];  § 2522.7).

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