Opinion
10522 Index 100541/17
12-10-2019
In re 247-253 WEST 116 LLC, Petitioner-Appellant, v. NEW YORK STATE DIVISION OF HOUSING AND COMMUNITY RENEWAL, et al., Respondents–Respondents.
Sidrane, Schwartz–Sidrane, Perinbasekar & Littman LLP, Rockville Centre (Arun Perinbasekar of counsel), for appellant. Mark F. Palomino, New York (Robert Ambaras of counsel), for New York State Division of Housing and Community Renewal, respondent. Law Office of Stephen H. Palitz, New York (Stephen H. Palitz of counsel), for Constance Jones, respondent.
Sidrane, Schwartz–Sidrane, Perinbasekar & Littman LLP, Rockville Centre (Arun Perinbasekar of counsel), for appellant.
Mark F. Palomino, New York (Robert Ambaras of counsel), for New York State Division of Housing and Community Renewal, respondent.
Law Office of Stephen H. Palitz, New York (Stephen H. Palitz of counsel), for Constance Jones, respondent.
Friedman, J.P., Kapnick, Kern, Oing, JJ.
Judgment, Supreme Court, New York County (Arlene P. Bluth, J.), entered July 5, 2018, denying the petition to annul a determination of respondent New York State Division of Housing and Community Renewal (DHCR), dated March 9, 2017, which assessed rent overcharges and imposed treble damages and attorneys' fees, and dismissing the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.
DHCR's determination that refinishing an existing bathtub in the subject apartment constituted repair or maintenance work rather than an Individual Apartment Improvement was rational (see 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] ). Although petitioner's predecessor made various improvements to the apartment, DHCR did not make a finding that the bathtub refinishing was part of a renovation project. DHCR's determination disallowing various items shown in quantities far greater than necessary for this one apartment was also rational.
DHCR properly relied on its inspector's report in disallowing certain items that it found had not been installed (see generally Matter of 333 E. 49th Assoc., LP v. New York State Div. of Hous. & Community Renewal, Off. of Rent Admin., 40 A.D.3d 516, 837 N.Y.S.2d 63 [1st Dept. 2007], affd 9 N.Y.3d 982, 849 N.Y.S.2d 19, 879 N.E.2d 158 [2007] ). DHCR rationally concluded that the inspection report was reliable despite the passage of time between the work performed and the inspection (see Matter of Pickman Realty Corp. v. New York State Div. of Hous. & Community Renewal, 299 A.D.2d 552, 750 N.Y.S.2d 518 [2d Dept. 2002] ; Matter of Weinreb Mgt. v. New York State Div. of Hous. & Community Renewal, 204 A.D.2d 127, 611 N.Y.S.2d 545 [1st Dept. 1994] ). Even assuming it was required to give petitioner notice of the inspection (cf. Matter of Whitehouse Estates v. New York State Div. of Hous. & Community Renewal, 5 A.D.3d 190, 772 N.Y.S.2d 807 [1st Dept. 2004] ), DHCR provided adequate notice by mailing the notice of inspection to an address where petitioner maintained an office (see generally California Suites, Inc. v. Russo Demolition Inc., 98 A.D.3d 144, 150, 946 N.Y.S.2d 55 [1st Dept. 2012] ). DHCR's calculation of the overcharge and treble damages was not irrational and did not result in excessive damages. Petitioner's predecessor's failure to file a proper and timely annual rent registration statement in 2010 resulted in the rent being frozen at the level in effect on the date of the last preceding registration statement (see Administrative Code of City of N.Y. § 26–517[e]; Bradbury v. 342 W. 30th St. Corp., 84 A.D.3d 681, 684, 924 N.Y.S.2d 349 [1st Dept. 2011] ). The imposition of a rent freeze is a statutory requirement (see Matter of 215 W 88th St. Holdings LLC v. New York State Div. of Hous. & Community Renewal, 143 A.D.3d 652, 653, 40 N.Y.S.3d 92 [1st Dept. 2016] ). DHCR's imposition of treble damages was also rational, as petitioner failed to establish that the overcharge was not willful (see 9 NYCRR 2526.1 [a][1]; Matter of 125 St. James Place LLC v. New York State Div. of Hous. & Community Renewal, 158 A.D.3d 417, 67 N.Y.S.3d 817 [1st Dept. 2018] ). In addition, many of the charges that DHCR disallowed consisted of items that either were shown in quantities far in excess of what was necessary for this one apartment or had never been installed at all. The calculations of the overcharge and imposition of treble damages were consistent with the governing regulations and were not excessive (see generally Matter of Pamela Equities Corp. v. Environmental Control Bd. of the City of N.Y., 171 A.D.3d 623, 624, 99 N.Y.S.3d 262 [1st Dept. 2019] ).
DHCR providently exercised its discretion in awarding attorneys' fees (see 9 NYCRR 2526.1 [d] ). The agency conducted a careful review of the documents submitted by respondent tenant demonstrating the time that counsel spent on this matter over the course of nearly 3½ years, as well as the nature of the services performed and the difficulties involved. DHCR's calculation of a reasonable hourly rate and the amount of time devoted to this matter was not irrational.