Ross v. DHCR

Judgment, Supreme Court, New York County (Margaret A. Chan, J.), entered May 15, 2013, granting the cross motion of respondent New York State Division of Housing and Community Renewal (DHCR) to dismiss this CPLR article 78 proceeding by petitioner to annul DHCR’s order, which dismissed as untimely petitioner’s petition for administrative review (PAR) of the denial of her rent overcharge complaint, unanimously affirmed, without costs.

The record supports DHCR’s finding that petitioner did not file the PAR until after the 35-day time limit imposed by section 2529.2 of the Rent Stabilization Code (9 NYCRR) had expired (see Matter of Windsor Place Corp. v State Div. of Hous. & Community Renewal, Off. of Rent Admin., 161 AD2d 279 , 280 [1st Dept 1990]). Contrary to petitioner’s contention, the Labor Day holiday is not excluded in counting the 35-day period because it was not the day on which the time limitation expired (see General Construction Law § 25-a; Matter of Pantaleoni v City of Rome, 126 Misc 2d 809 , 809-810 [Sup Ct, Oneida County 1984]). Accordingly, petitioner’s failure to timely file a PAR within 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” (Matter of Nelson Mgt. Group v New York State Div. of Hous. & Community Renewal, 259 AD2d 411 , 412 [1st Dept 1999], lv denied 93 NY2d 814 [1999]). Concur — Friedman, J.P., Andrias, Saxe, Richter and Gische, JJ.