Sichel v. Aponte

—Order, Supreme Court, New York County (Carol Arber, J.), entered May 12, 1993, which denied and dismissed petitioner’s application pursuant to CPLR article 78 challenging the determination by the Commissioner of the Division of Housing and Community Renewal, dated September 16, 1992, which upheld the order of the Rent Administrator as to the fair market rent of a certain apartment, unanimously affirmed, without costs. Petitioner, the owner of the subject apartment, having ignored repeated opportunities to contest the tenant’s administrative fair market rent appeal and submit his own proof of comparable rents and whatever other documents that .he deemed relevant, may not now complain about the correctness of the agency’s determination, since the law is settled that arguments not raised during the administrative proceeding may not be asserted for the first time before the courts in an article 78 proceeding (Matter of Yonkers Gardens Co. v State of N. Y. Div. of Hous. & Community Renewal, 51 NY2d 966). As for petitioner’s contention that the Supreme Court erred in rejecting his claim that he did, in fact, serve an answer and/or comparable rent data to the agency, a self-serving affidavit in which the owner states that he hand-delivered a response to the tenant’s application, a purported copy of which is undated and unsigned, is, in the absence of any proof in support therefor such as a receipt of service, hardly sufficient to overcome a finding by the agency that no such data was ever submitted, and thus the Supreme Court appropriately denied and dismissed the petition. Concur—Kupferman, J. P., Ross, Williams and Tom, JJ.