Opinion
June 8, 1999.
Appeal from the Supreme Court, New York County (Stanley Sklar, J.).
In this rent overcharge proceeding, petitioner tenant concedes that respondent DHCR properly utilized its default formula upon the landlord's failure to produce the rental history for the subject apartment ( see, Matter of Bauer v. New York State Div. of Hous. Community Renewal, 225 A.D.2d 410, lv denied 88 N.Y.2d 805; Matter of Drewbar Realty Co. v. State of New York Div. of Hous. Community Renewal, 181 A.D.2d 617). Our holding in Smitten v. 56 MacDougal St. Co. ( 167 A.D.2d 205) is not applicable within the context of this article 78 proceeding, and petitioner has not otherwise demonstrated the existence of any ground upon which we might disturb respondent agency's interpretation and application of its default formula to the facts of this case ( see, Matter of Ansonia Residents Assn. v. New York State Div. of Hous. Community Renewal, 75 N.Y.2d 206, 213).
Concur — Sullivan, J.P., Nardelli, Lerner, Rubin and Saxe, JJ.