319 East 50th Street Associates v. New York State Division of Housing & Community Renewal

—Order and judgment (one paper), Supreme Court, New York County (Edith Miller, J.), entered June 3, 1992, which dismissed the petition brought pursuant to CPLR article 78 and upheld an order of respondent that determined the adjusted initial legal regulated rent for the subject apartment upon consideration of the tenant’s Fair Market Rent Appeal ("FMRA”), unanimously affirmed, without costs. Petitioner’s failure to raise at the administrative proceeding the argument that the tenant, whose apartment was vacant during the period between January 1 and June 30, 1974, was ineligible to maintain a FMRA because the unit had become decontrolled under a prior lease, precludes present consideration for the first time upon judicial review of the proceeding (see, Matter of Rozmae Realty v State Div. of Hous. & Community Renewal, 160 AD2d 343, lv denied 76 NY2d 712). Moreover, even if this claim were considered, we would find it to be without merit, since the FMRA was filed before April 1, 1984 and thus based upon the Code in effect on March 31, 1984 (Rent Stabilization Code [9 NYCRR] § 2521.1 [d] [1]), which allowed a FMRA if, as here, the apartment was rent controlled before July 1, 1971, and a vacancy occurred between January 1 and June 30, 1974 (former Code of Rent Stabilization Association of New York City, Inc. § 25 [A]). Petitioner’s remaining argument that it was denied due process is without merit since petitioner did not meet its burden of providing the necessary documentation to oppose the FMRA although given notice and opportunity to do so (see, Matter of Ullman Estates v New York City Conciliation & Appeals Bd., 62 NY2d 758, affg 97 AD2d 296). [29] As the administrative determination had a rational basis and was not arbitrary or capricious, the petition was properly dismissed. Respondent’s application for additional submission is denied. Concur — Sullivan, J. P., Rosenberger, Ellerin and Wallach, JJ.