Opinion
7531 Index 101924/16
11-01-2018
In re Angelica Uribe ENRIQUEZ, Petitioner–Respondent–Appellant, v. NEW YORK STATE DIVISION OF HOUSING AND COMMUNITY RENEWAL, Respondent–Appellant–Respondent.
Mark F. Palomino, New York State Division of Housing and Community Renewal, New York (Eu Ting–Zambuto of counsel), for appellant-respondent. Northern Manhattan Improvement Corp. Legal Services, New York (Matthew J. Chache`re of counsel), for respondent-appellant.
Mark F. Palomino, New York State Division of Housing and Community Renewal, New York (Eu Ting–Zambuto of counsel), for appellant-respondent.
Northern Manhattan Improvement Corp. Legal Services, New York (Matthew J. Chache`re of counsel), for respondent-appellant.
Renwick, J.P., Richter, Manzanet–Daniels, Gische, Tom, JJ.
Order and judgment (one paper), Supreme Court, New York County (Arlene P. Bluth, J.), entered August 9, 2017, which granted the petition to annul respondent's (DHCR) final determination, dated September 26, 2016, denying the petition for administrative review of a rent overcharge order, to the extent of vacating the determination and remanding the proceeding brought pursuant to CPLR article 78 for a new determination, unanimously reversed, on the law, without costs, the determination reinstated, the petition denied, and the proceeding dismissed.
DHCR correctly calculated the legal regulated rent by taking the base rent (as of four years before the rent overcharge petition) and adding thereto all "subsequent lawful increases and adjustments" ( Rent Stabilization Code [9 NYCRR] § 2526.1[a][3][i] ). Contrary to the court's finding, the subject rent registration statements were "proper" within the meaning of Rent Stabilization Law (RSL) (Administrative Code of City of NY) § 26–517(e). That provision requires landlords to "file a proper and timely initial or annual rent registration statement," which means a statement of the "rent charged on the registration date" (id. § 26–517[a] ), or "current rent" (id. § 26–517[f] ), rather than the technically legally collectible rent (see Dodd v. 98 Riverside Dr., LLC, 2012 N.Y. Slip Op 31653 [U], *4, 2012 WL 2502774 [Sup. Ct., N.Y. County 2012] ). The rent registration statements recorded the actual amount of rent charged to the tenant and were not the product of fraudulent leases or otherwise legal "nullities" (see Bradbury v. 342 W. 30th St. Corp., 84 A.D.3d 681, 683–684, 924 N.Y.S.2d 349 [1st Dept. 2011] ; Jazilek v. Abart Holdings, LLC, 72 A.D.3d 529, 531, 899 N.Y.S.2d 198 [1st Dept. 2010] ).
Supreme Court erred in sua sponte directing that, on remand, DHCR could "revisit" its finding of willfulness, because this issue was not raised at the agency level (see Matter of Hughes v. Suffolk County Dept. of Civ. Serv., 74 N.Y.2d 833, 546 N.Y.S.2d 335, 545 N.E.2d 625 [1989] ). Nor, in any event, did the landlord adduce sufficient evidence before theagency to rebut the statutory presumption of willfulness (see RSL § 26–516[a]; Draper v. Georgia Props., 230 A.D.2d 455, 460, 660 N.Y.S.2d 556 [1st Dept. 1997], affd 94 N.Y.2d 809, 701 N.Y.S.2d 322, 723 N.E.2d 71 [1999] ).