Opinion
March 19, 1996
Appeal from the Supreme Court, New York County (Lewis Friedman, J.).
The determination of respondent agency was not arbitrary and capricious and was rationally supported by the record ( Matter of Pell v Board of Educ., 34 N.Y.2d 222). As petitioners failed to register the regulated apartment initially in 1984 or prior to the Rent Administrator's order and failed to serve a copy of the registration on the tenant (Administrative Code of City of N Y § 26-517; 9 NYCRR 2528.1) or provide a rent history for the apartment dating back to the base date, the Commissioner properly barred collection of increases in excess of the lawful rent and allowed the agency to use its settled procedures to establish the rent ( Matter of Drewbar Realty Co. v State of N.Y. Div. of Hous. Community Renewal, 181 A.D.2d 617). Since petitioners failed to prove, by a preponderance of the evidence, that the overcharges were not willful, treble damages were properly imposed ( Matter of Gattiboni v Aponte, 188 A.D.2d 434). Nor were petitioners' rights violated by the failure to hold a fact-finding hearing, where they were afforded a reasonable opportunity to be heard ( Matter of Aquayo v New York State Div. of Hous. Community Renewal, 150 A.D.2d 565).
Equity should not be invoked to relieve petitioners from the imposition of treble damages, as such measure was not so harsh under the facts herein as to "shock the conscience of the court" ( Matter of Drizin v Commissioner of Div. of Hous. Community Renewal, 140 A.D.2d 605, 607), and as petitioners' actions violated statutory law ( see, Matter of Dane, 55 A.D.2d 224, 226).
Concur — Milonas, J.P., Rosenberger, Ellerin, Rubin and Williams, JJ.