Brief on Appeal

 

233 A.D.2d 120, 649 N.Y.S.2d 135

Supreme Court, Appellate Division, First Department, New York

In re Application of Justin E. HOY, Petitioner-Appellant, For a Judgment, etc., v.
STATE OF NEW YORK DIVISION OF HOUSING AND COMMUNITY RENEWAL, et al., Respondents-Respondents.

Nov. 7, 1996.

Mortimer Todel, New York City, for Petitioner-Appellant.
Richard Hartzman, Patrick Munson, New York City, for
Respondents-Respondents.

Before SULLIVAN, J.P., and ELLERIN, TOM and MAZZARELLI, JJ.

MEMORANDUM DECISION.

Judgment, Supreme Court, New York County (Charles Ramos, J.), entered August 10, 1995, which confirmed a determination of respondent Division of Housing and Community Renewal (DHCR) dated August 26, 1994, denying petitioner’s fair market rent appeal, and denied the petition and dismissed the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.

DHCR’s determination, that vacancy decontrol did not apply to the subject apartment, had a rational basis. After the apartment was decontrolled pursuant to a stipulation between the rent controlled tenant and respondent- landlord, the rent controlled tenant remained on the lease as a co-tenant of petitioner for seven months. There was no “hiatus in possession”, because the rent controlled tenant was still entitled to the use or possession of the apartment after decontrol and after petitioner’s tenancy began (see, Matter of Ghignone v. Joy, 55 N.Y.2d 853, 447 N.Y.S.2d 708, 432 N.E.2d 601, affd 83 A.D.2d 839, 441 N.Y.S.2d 568; Matter of Veltri v. Joy, 55 A.D.2d 529, 530, 389 N.Y.S.2d 105, affd 43 N.Y.2d 660, 400 N.Y.S.2d 816, 371N.E.2d 534).

We have considered petitioner’s other arguments and find them to be without merit.

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