Nelson Management Group, Ltd. v. New York State Division of Housing & Community Renewal

259 A.D.2d 411, 687 N.Y.S.2d 149, 1999 N.Y. App. Div. LEXIS 3030

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 25, 1999
• Status: Published

Opinion

Order, Supreme Court, New York County (Karla Moskowitz, J.), entered September 1, 1998, which, in a CPLR article 78 proceeding by petitioner receiver challenging respondent Division of Housing and Community Renewal’s award of a rent overcharge and dismissal of petitioner’s petition for administrative review (PAR) for untimeliness, granted respondent’s cross motion to dismiss the petition, unanimously affirmed, without costs.

Petitioner’s untimely filing of its PAR more than 35 days after the issuance of the overcharge order constituted a failure to exhaust administrative remedies justifying dismissal of petitioner’s subsequent article 78 proceeding (see, Matter of Dowling v Holland, 245 AD2d 167, 169, citing, inter alia, Matter of Lipes v State of N. Y., Div. of Hous. & Community Renewal, 174 AD2d 571). Petitioner’s denial of receipt or other notice of the order until informed of it by the tenant’s attorney is insufficient to overcome the presumption of receipt raised by respondent’s evidence of its routine mailing procedures (see, supra, at 169, citing, inter alia, Woodner Co. v Higgins, 179 AD2d 444, lv denied 80 NY2d 756). Concur — Ellerin, P. J., Sullivan, Lerner and Rubin, JJ.