Opinion
5577 Index 100219/16
02-01-2018
In re 125 ST. JAMES PLACE LLC, Petitioner–Appellant, v. NEW YORK STATE DIVISION OF HOUSING AND COMMUNITY RENEWAL, Respondent–Respondent.
Hagan, Coury & Associates, Brooklyn (Paul Golden of counsel), for appellant. Mark F. Palomino, New York (Anita Shia of counsel), for respondent.
Hagan, Coury & Associates, Brooklyn (Paul Golden of counsel), for appellant.
Mark F. Palomino, New York (Anita Shia of counsel), for respondent.
Renwick, J.P., Richter, Tom, Gesmer, Oing, JJ.
Order and judgment (one paper), Supreme Court, New York County (Barbara Jaffe, J.), entered August 24, 2016, denying owner's petition to annul and vacate the order of respondent New York State Division of Housing and Community Renewal (DHCR), dated December 21, 2015, which denied owner's petition for administrative review (PAR) of a determination finding a rent overcharge and awarding treble damages, and dismissing the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.
DHCR's determination of a rent overcharge was rationally based and neither arbitrary nor capricious, based upon its rejection of petitioner owner's documentation of claimed improvements (see Matter of Graham Court Owners Corp. v. Division of Hous. & Community Renewal, 71 A.D.3d 515, 899 N.Y.S.2d 7 [1st Dept. 2010];Matter of 985 Fifth Ave., Inc. v. State Div. of Hous. & Community Renewal, 171 A.D.2d 572, 574–575, 567 N.Y.S.2d 657 [1st Dept. 1991], lv denied 78 N.Y.2d 861, 576 N.Y.S.2d 219, 582 N.E.2d 602 [1991] ). Given the identity of interest between petitioner and the general contractor, DHCR was justified in requesting additional proof of cost and payment of the work (see DHCR Policy Statement 90–10; see also Matter of 201 E. 81st St. Assoc. v. New York State Div. of Hous. & Community Renewal, 288 A.D.2d 89, 733 N.Y.S.2d 23 [1st Dept. 2001];Matter of Waverly Assoc. v. New York State Div. of Hous. & Community Renewal, 12 A.D.3d 272, 785 N.Y.S.2d 67 [1st Dept. 2004] ).
DHCR also properly held that certain expenses, including for painting, plastering, and repairing wood floors, were for normal maintenance and repair, and not "improvements" (see 9 NYCRR § 2522.4 ; Matter of Yorkroad Assoc. v. New York State Div. of Hous. & Community Renewal, 19 A.D.3d 217, 797 N.Y.S.2d 60 [1st Dept. 2005] ; Matter of Mayfair York Co. v. New York State Div. of Hous. & Community Renewal, 240 A.D.2d 158, 658 N.Y.S.2d 270 [1st Dept. 1997] ).
As petitioner failed to establish that the overcharge was not willful, the imposition of treble damages was proper (see Matter of Century Towers Assoc. v. State of N.Y. Div. of Hous. & Community Renewal, 83 N.Y.2d 819, 611 N.Y.S.2d 491, 633 N.E.2d 1095 [1994]; Matter of Tockwotten Assoc. v. New York State Div. of Hous. & Community Renewal, 7 A.D.3d 453, 777 N.Y.S.2d 465 [1st Dept. 2004] ).
We have considered petitioner's remaining contentions and find them unavailing.