The relevant provisions of the Rent Regulation Reform Act of 1997 seem as clear to me as they did when I dissented in Thornton v Baron (5 NY3d 175 [2005]).
“[N]o determination of an overcharge and no award or calculation of an award of the amount of an overcharge may be based upon an overcharge having occurred more than four years before the complaint is filed. . . . This paragraph shall preclude examination of the rental history of the housing accommodation prior to the four-year period preceding the filing of a complaint pursuant to this subdivision” (Rent Stabilization Law [RSL] of 1969 [Administrative Code of City of NY] § 26-516 [a] [2]; see also id. § 26-516 [a] [“Where the amount of rent set forth in the annual rent registration statement filed four years prior to the most recent registration state*357ment is not challenged within four years of its filing, neither such rent nor service of any registration shall be subject to challenge at any time thereafter”]; Rent Stabilization Code [9 NYCRR] § 2526.1 [a] [2]).
In Thornton, this Court, unjustifiably I thought, wrote an exception into the statute, and in this case it writes another one, which I also think unjustified.
I grant that there is some tension between the command of the 1997 Reform Act that rental history going back more than four years may not be considered and the provision of RSL § 26-514 that rent reduction orders based on a failure to provide required services remain in effect until the deficiency in services is cured. There is not such a stark conflict, however, as to justify the majority’s choice to let one statute nullify the other. DHCR has, it seems to me, found a fair solution by ordering that, where the noncompliance goes on for more than four years, the rent is in effect frozen for a rolling four-year period—so that the tenant cannot get the advantage of a rent level more than four years old, but the landlord is never free from the reduction order’s effect. This works no undue hardship on the tenant, who need only file a complaint within four years of being overcharged to avoid any time bar.
It is thus unnecessary to resort to the fiction embraced by the majority that a rent level existing more than four years earlier is transformed by the rent reduction order into a “part of the [more recent] rental history which DHCR must consider” (majority op at 356). I would affirm the order of the Appellate Division.
Chief Judge Lippman and Judges Graffeo, Read, Pigott and Jones concur with Judge Ciparick; Judge Smith dissents and votes to affirm in a separate opinion.
Order reversed, etc.