IN THE MATTER OF ALCOMA CORP., APPELLANT, v. NYS DIVISION OF HOUSING AND COMMUNITY RENEWAL AND MARTHA BEDFORD, RESPONDENTS.
79 N.Y.2d 834, 558 N.E.2d 79, 580 N.Y.S.2d 181 (1992).
January 9, 1992

1 No. 82 SSM 27

Decided January 9, 1992

This memorandum is uncorrected and subject to revision before publication in the New York Reports.

Submitted by Jeffrey Turkel, for Appellant.
Submitted by Lawrence Alexander, for Respondent DHCR.
Submitted by Stewart L. Levy, for Respondent Bedford.

MEMORANDUM:

The order of the Appellate Division should be affirmed, with costs, and the certified question not be answered as unnecessary.

Petitioner -- the owner of a previously rent controlled apartment -- served, by mail, a DC-2 notice on the first rent stabilized tenant in occupancy, informing the tenant of its right to file a Fair Market Rent Appeal. When the tenant thereafter filed such an appeal, petitioner challenged it on timeliness grounds, arguing that the former Rent Stabilization Code required that the appeal be filed within ninety days of the tenant's receipt of the DC-2 notice even though the notice was not served by certified mail. The New York State Division of Housing and Community Renewal ("DHCR") ultimately rejected this contention. Petitioner contends that it erred in doing so. We disagree. Section 26A of the former Code provides that the owner of a previously rent controlled apartment "shall" serve a DC-2 notice upon the first rent stabilized tenant in occupancy "by certified mail" [emphasis supplied]. Section 25B then provides that the tenant must file its Fair Market Rent Appeal "within ninety (90) days after [it] receives the [DC-2 notice] as required by Section 26A * * *" [emphasis supplied]. DHCR interpreted these provisions as requiring that the owner serve the DC-2 notice by certified mail before the ninety day limitation period for filing a Fair Market Rent Appeal commences to run. Inasmuch as this interpretation is neither unreasonable nor irrational, there is no basis for disturbing it (see, Matter of Salvati v Eimicke, 72 NY2d 784, 791).

We have examined petitioner's remaining contentions and find them to be without merit.

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On review of submissions pursuant to section 500.4 of the Rules, order affirmed, with costs, in a memorandum. Question certified not answered as unnecessary. Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock and Bellacosa concur.