
    In the Matter of Har Holding Co., Appellant, v Joseph B. Lynch, as Commissioner of the New York State Division of Housing and Community Renewal, et al., Respondents.
    [718 NYS2d 27]
   Order, Supreme Court, New York County (Robert Lippmann, J.), entered November 23, 1999, which denied petitioner landlord’s application to annul respondent DHCR’s determination establishing the fair market rent for the subject apartment and directing petitioner to roll back the rent and refund excess rent collected, unanimously affirmed, without costs.

Respondent properly established the fair market rent for the subject apartment based solely upon the applicable special rent guideline order where petitioner failed to submit qualifying comparable rents (see, Matter of Mansions v Higgins, 189 AD2d 713). Respondent correctly interpreted petitioner’s Civil Court settlement with the tenant as having preserved the tenant’s right to establish the fair market rent of the apartment as of the first day of his tenancy. The record also shows that the Rent Administrator took into account the amount of rent paid by the tenant in determining the amount of the overcharge and credited the landlord even with biennial MBR increases for which it did not apply. Concur — Rosenberger, J. P., Williams, Tom, Ellerin and Wallach, JJ.  