
    In the Matter of Jemrock Realty Co., Appellant, v State Division of Housing and Community Renewal et al., Respondents.
   Judgment of the Supreme Court, New York County (Phyllis Gangel-Jacob, J.), entered April 27, 1990, which dismissed the petition pursuant to CPLR article 78 which sought to annul an order of the New York State Division of Housing and Community Renewal (DHCR) dated November 1, 1989, unanimously affirmed, without costs.

Petitioner is the owner of 210 West 101st Street. Prior to April 1, 1984 the tenant of apartment 15E filed a rent overcharge complaint. DHCR directed the owner to roll back the rent by approximately $400 per month, and determined a refund was due the tenant of $33,817.57.

Petitioner’s request that this court overrule its determination in Matter of Lavanant v State Div. of Hous. & Community Renewal (148 AD2d 185) has been rejected numerous times and does not warrant serious consideration. (See, e.g., Matter of Jemrock Realty Co. v Division of Hous. & Community Renewal, 166 AD2d 222.) Furthermore, DHCR’s processing of the tenant’s rent overcharge complaint as a fair market rent challenge was neither arbitrary nor capricious; the tenant, at the time she initially filed her papers, was unaware that she was the first rent-stabilized tenant. Concur—Sullivan, J. P., Carro, Rosenberger, Ellerin and Kupferman, JJ.  