Hoy v. State of New York Division of Housing & Community Renewal , 649 N.Y.S.2d 135 ( 1996 )

—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 NY2d 853, affg 83 AD2d 839; Matter of Veltri v Joy, 55 AD2d 529, 530, affd 43 NY2d 660).

We have considered petitioner’s other arguments and find them to be without merit. Concur—Sullivan, J. P., Ellerin, Tom and Mazzarelli, JJ.