
    In the Matter of Cottage Associates, Respondent, v Division of Housing and Community Renewal of the State of New York et al., Appellants.
   In a proceeding pursuant to CPLR article 78 to review a determination of the New York State Division of Housing and Community Renewal which, after a hearing, fixed the initial legal regulated rent on a certain apartment pursuant to the Emergency Tenant Protection Act and the Tenant Protection Regulations, the appeal is from a judgment of the Supreme Court, Westchester County, dated March 30, 1976, which, inter alia, (1) granted the petition and (2) fixed the initial legal regulated rent for the subject apartment at $285 a month. Judgment affirmed, with costs. After a hearing requested by the petitioner landlord in response to the tenant’s complaint, the hearing officer found, inter alia, that "the landlord was in error, to his detriment, for not collecting $285 per month after Federal Freeze was lifted. The tenants knew the apartment was a decontrolled apartment and that the lease rent was $285.00 per month, but since the [landlord] did not demand $285 they continued to pay $217.89.” Under these circumstances, wherein the landlord collected less rent than its lease provided for on the mistaken assumption that the apartment was still controlled, whereas in fact it had been decontrolled some time before, we cannot conclude that the acceptance of the lesser amount constituted a new agreement between the landlord and tenant sufficient to discharge the tenant from his liability under the lease and its rider, which provided for the reinstatement of the lease rent upon expiration of the freeze. Accordingly, the division’s determination was properly set aside. In so holding, we clearly distinguish the instant fact pattern from what are commonly termed "sweetheart leases”, wherein the lessor and lessee orally agree to the payment and acceptance of a lesser sum than the lease provides. Such situations involve a meeting of the minds, which was not present in the instant case. Gulotta, P. J., Hopkins, Latham, Cohalan and Hawkins, JJ., concur.  