Because the majority now departs from long-standing precedent concerning the four-year statute of limitations in residential rent overcharge actions, I must respectfully dissent.
“In reviewing an administrative agency determination, we must ascertain whether there is a rational basis for the action in question or whether it is arbitrary and capricious” (Matter of Gilman v New York State Div. of Hous. & Community Renewal, 99 NY2d 144, 149 [2002]). Neither the Division of Housing and Community Renewal’s nor the IAS court’s finding of willfulness was arbitrary and capricious, and both have a rational basis.
We have previously upheld Rent Stabilization Law (Administrative Code of City of NY) § 26-516 (a) (2), as amended by the Rent Regulation Reform Act of 1997, which specifically “preclude[s] examination of the rental history of the housing accommodation prior to the four-year period preceding the filing of a [rent overcharge] complaint” (Zafra v Pilkes, 245 AD2d 218, 219 [1997]). There is no dispute in this case that the base date was July 17, 1998. The improvements claimed to have been made by the owner were completed by February 13, 1998, prior to the base date. The complaint was filed on July 17, 2002, more than four years after the completion of the claimed renovations. The inclusion of the renovations in the rental calculation was thus impermissible (Matter of Tockwotten Assoc. v New York State Div. of Hous. & Community Renewal, 7 AD3d 453 [2004]).
Tockwotten’s holding is not distinguishable on the grounds that the owner there failed to provide any rental history rec*111ords. Even in those cases where rental registration statements or rental history are provided, such as here, we have held unequivocally that “Mental history that falls outside the four-year period does not become reviewable simply because it is listed in a registration statement filed within the four-year period” (Matter of McCarthy v New York State Div. of Hous. & Community Renewal, 290 AD2d 313, 314 [2002]). It should be noted that the agency found the rental registration statements submitted by the owner here to contain improper representations.
Moreover, the IAS court appropriately determined that the owner could not reasonably rely on Justice Allen’s unreported decision in H.O. Realty Corp. v New York State Div. of Hous. & Community Renewal. Although that case involved a different apartment in the same building, the issue there did not involve rent overcharge claims, but rather concerned the appropriateness of permanent rent increases under Rent Stabilization Code (9 NYCRR) § 2522.4 (a) (1). That section allows for rent increases for renovations only upon the written consent of the tenant at the time of the renovations, or without consent if the apartment is vacant at the time of the renovations. Neither of these factors is present in this case.
I recognize that the imposition of treble damages may seem harsh. Indeed, I agree with the majority that such damages are punitive in nature, and are designed to penalize landlords who deliberately overcharge rent and to act as a deterrent for those considering such action. However, even though we would not necessarily arrive at the same finding as the agency, our function as an appellate court is to determine whether the agency’s decision was arbitrary and capricious or without a rational basis in the administrative record (Greystone Mgt. Corp. v Conciliation & Appeals Bd. of City of N.Y., 94 AD2d 614, 617 [1983], affd 62 NY2d 763 [1984]). “Where such a rational basis exists, a court may not substitute its judgment for that of the agency” (Tockwotten, 7 AD3d at 454).
The agency made a willfulness finding partially on the owner’s improper representations as to the apartment’s legal rent in its 2001 and 2002 rent registrations, as well as other factors. It cannot thus be said that the agency’s findings were not supported by the record or that the IAS court erroneously upheld those findings. The judgment of the IAS court should therefore be affirmed.
*112Sullivan and Malone, JJ., concur with Kavanagh, J.; Mazzarelli, J.P., and Sweeny, J., dissent in a separate opinion by Sweeny, J.
Judgment, Supreme Court, New York County, entered on or about May 12, 2006, modified, on the law, to the extent of reinstating the petition insofar as it challenges treble damages, and otherwise affirmed, without costs, and the matter remitted to Supreme Court for further proceedings as to the issues of willfulness and treble damages.