Opinion
March 7, 1996
Appeal from the Supreme Court, New York County (Bruce Wright, J.).
A refusal by a landlord to renew a lease on the ground that he will use the premises as a primary residence for himself or a member of his immediate family ( see, Rent Stabilization Code [9 NYCRR] § 2524.4 [a] [1]) must be predicated on notice of termination served between 150 and 120 days prior to the actual termination date ( see, Quigley v Russo, 133 Misc.2d 137, 138). Such termination date should be ascertained from "a lease from which these dates can be calculated" ( Ansonia Assocs. v Consiglio, 163 A.D.2d 98, 99). The issue of a landlord's noncompliance with this limitation of time could be raised in a subsequent eviction action, and failure to raise the issue in administrative proceedings does not constitute a waiver ( cf., Rosen v Wade, 99 Misc.2d 1114, 1115). Accordingly, in this matter in which landlord misstated the true lease date in its administrative application and the true date was contained within the original administrative record, respondent agency's treatment of its initial misapprehension with respect to the actual lease date as an "irregularity in [a] vital matte[r]" (Rent Stabilization Code § 2527.8), was not unreasonable or irrational and should therefore be upheld ( see, Matter of Parcel 242 Realty v New York State Div. of Hous. Community Renewal, 215 A.D.2d 132, 134, lv denied 86 N.Y.2d 706).
We have considered petitioner's remaining arguments and find them to be without merit.
Concur — Ellerin, J.P., Rubin, Ross, Williams and Tom, JJ.