Opinion
111105/10.
Decided March 10, 2011.
Alyssa D. Sandman, Esq., Belkin Burden Wenig et al., New York, NY.
Gary R. Connor, Esq., General Counsel, New York, NY, for respondent DHCR.
Kenneth P. Kane, Esq., New York, NY, for respondent Morinaga.
By notice of petition and verified petition dated August 11, 2010, petitioner moves pursuant to CPLR Article 78 for an order reversing and annulling the June 21, 2010 Final Order issued by respondent New York State Division of Housing and Community Renewal (DHCR) or, alternatively, remanding the matter to DHCR for a hearing. Respondents oppose the petition.
I. BACKGROUND A. Morinaga's tenancy
Petitioner owns apartment 3C in the building located at 73 Lexington Avenue in Manhattan, presently occupied by respondent Morinaga, and formerly owned by Eldore Apartments, Inc. (Verified Petition, dated Aug. 11, 2010 [Pet.]). On April 21, 2005, petitioner took title to the property. ( Id.).
By renewal lease commencing on June 10, 2002, the prior owner and Osami Araki, Morinaga's uncle, agreed to a one-year lease at a monthly rent of $1,021.59, an increase of the prior year's rent of $982.30. Araki signed it on June 10, 2002. ( Id., Exh. E).
In 2004, the prior owner registered the rent for the apartment with DHCR, reflecting that Morinaga was paying $900 a month for a one-year lease from March 15, 2004 to March 14, 2005. (DHCR Index [Index], Exh. A-1). The rent was duly registered as the legal regulated rent for the apartment, while the section permitting the landlord to also register the actual rent paid by the tenant, if different from the legal regulated rent, i.e., a preferential rent, was left blank by the prior owner. ( Id.).
On June 27, 2005, petitioner filed an amendment to the 2004 rent registration for the apartment, changing the rent from March 15, 2004 to March 14, 2005 to $1,204.78, apparently reflecting an 18 percent vacancy increase. (Pet., Exh. J).
In an occupant information form provided by petitioner and signed by Morinaga on June 9, 2005, Morinaga stated that she had moved into the apartment in September 2001 and that she lived there alone. ( Id., Exh. H).
By renewal lease dated August 2, 2005, Morinaga agreed to a one-year lease renewal, commencing on December 4, 2005 and ending on November 30, 2006, at the legal regulated rent of $1,460.73. ( Id., Exh. K). The parties also agreed that petitioner would charge Morinaga a preferential monthly rent of $899.06 for the term, with Morinaga acknowledging that once the renewal lease ended, petitioner would charge all future rent based on the legal regulated rent. ( Id.). Morinaga signed the renewal lease on November 4, 2005. ( Id.).
On December 16, 2006, Morinaga signed a renewal lease for December 1, 2006 to November 30, 2007 at a rate of $1,290.52, with the parties agreeing that Morinaga would pay a preferential rent of $1,200. ( Id., Exh. L). The rent amounts agreed upon were negotiated by the parties after Morinaga, for the first time, retained a lawyer to contest petitioner's proposed rent guideline increase. ( Id., Exh. M).
On November 26, 2007, Morinaga signed a one-year renewal lease commencing on December 1, 2007 at a monthly rate of $1,329.23; no preferential rent was offered. ( Id., Exh. N).
DHCR's rent roll for the building, current as of August 11, 2010, reflects the following:
(1)Araki became the tenant of the apartment on June 10, 1997 at a monthly rent of $891;
(2)Beginning in June 1998, Araki's rent increased to $908; in June 1999 to $926; in June 2000 to $944.52; in June 2001 to $982.03; and in June 2002 to $1,021, and at no time did he pay a preferential rent;
(3)Araki's lease from June 2002 ended on June 10, 2003;
(4)Morinaga became the tenant of the apartment pursuant to a lease commencing on March 15, 2004 at a monthly rent of $1,204.78;
(5)In 2005, Morinaga's monthly rent was $1,421.64 but she actually paid $875;
(6)In 2006, Morinaga's monthly rent was $1,460.73 but she actually paid $899.06;
(7)In 2007, Morinaga's monthly rent was $1,290.52 but she actually paid $1,200; and
(8)In 2008, Morinaga's monthly rent was $1,329.23.
( Id., Exh. J). There is no information on the rent roll for the apartment between June 2003 and March 2004.
B. DHCR proceeding
On or about October 30, 2008, Morinaga filed a rent-overcharge complaint against petitioner, alleging that she moved into the apartment on September 3, 1998, pursuant to a one-year lease commencing on June 10, 1998 and expiring on June 30, 1999 at a monthly rent of $750. ( Id., Exh. F). She also alleged that she had a lease for the apartment from December 2003 to December 2004 at a monthly rent of $950, and from December 2004 to December 2005 at a monthly rent of $900. ( Id.). In an annexed letter, Morinaga stated that she had moved in with Araki in 1998, that Araki was the named tenant from 1998 to 2003, and that the apartment had never been vacant. ( Id., Exh. G). She provided copies of rent receipts, all in her name, reflecting that from November 2004 to January 2006, she paid $875 a month. (Index, Exh. A-1).
In response to DHCR's request for additional information and in reply to petitioner's answer to her overcharge complaint, Morinaga stated that she moved into the apartment in 1998, while Araki was living there, that Araki moved out in August 2001, that she has lived continuously in the apartment since then ( id., Exh. I), and that since 2001, she pays the rent in cash. She annexed additional rent receipts; the first that bear her name is dated July 2003. Thereafter, all bear her name. (Index, Exh. A-8).
By request mailed on August 10, 2009, DHCR asked petitioner to provide a complete copy of Morinaga's lease showing the rent charged and paid from December 1, 2004 to the present, including any lease riders, and a copy of the rent ledger covering December 1, 2004. (Index, Exh. A-7). By response dated August 31, 2009, petitioner advised DHCR that having acquired the building on April 21, 2005, it did not have a rent ledger covering the base date of December 1, 2004. ( Id., Exh. A-9).
By final notice mailed on December 2, 2009, DHCR advised petitioner that based on the evidence in the record and on its failure to prove that the rent charged on December 1, 2004 was preferential, it proposed finding that petitioner had overcharged Morinaga, and that the overcharge would result in the imposition of treble damages. It gave petitioner a final opportunity to establish that there was no overcharge and/or that any overcharge had not been willful. (Index, Exh. A-11).
By letter and response dated December 22, 2009, petitioner argued that the prior owner did not provide it with the 2004 lease or rent ledger, and that treble damages were not warranted as it had made a good faith effort to produce the relevant records, as any overcharge resulted from the prior owner's actions, and as it had lowered Morinaga's rent in 2006 after she retained counsel. (Index, Exh. A-12).
By order dated January 27, 2010, DHCR found that petitioner had overcharged Morinaga in the amount of $11,320.94, plus treble damages of $22,641.88, calculated as follows:
(1)between December 2006 and December 2007, Morinaga paid $1,200 when the legal regulated rent was $937.27 (constituting a rent guideline increase of 4.25 percent over the prior year's rent of $899.06);
(2)between December 2007 and December 2008, Morinaga paid $1,329.23 when the legal regulated rent was $965.39; and
(3)between December 2008 and October 2008, Morinaga paid $1,389.04 when the legal regulated rent was $1,008.83.
(Pet., Exh. B). DHCR found as follows:
The base date is 12/01/2004 with a base rent of $875. The owner was requested [] to submit a copy of the lease and/or rent ledger showing the rent amount charged and paid on the base date. The owner stated that they purchased the subject premises in April of 2005, and therefore, do not have any information covering the base date. Due to the owner's failure to establish that the rent of $875 charged by the owner and paid by the tenant on the base date is a preferential rent, it has been determined that said rent of $875 is the legal regulated rent upon which all future lawful increases must be computed.
( Id.). The treble damages arise from DHCR's finding that petitioner had not established that its overcharge was not willful. ( Id.).
On or about February 27, 2010, petitioner filed a petition for administrative review (PAR) of DHCR's order, alleging that DHCR improperly calculated the base rent in 2004 and that since Morinaga had not produced a lease from 2004, the proper calculation should have been based on the 2005 lease agreement signed by the parties. ( Id., Exh. D). Petitioner argued that Morinaga made conflicting statements about when she moved into the apartment, thus undermining her credibility, and that there was no evidence supporting the treble damages. ( Id.).
By order and opinion dated June 21, 2010, DHCR affirmed the appealed order, rejecting petitioner's argument that the calculation of the base rent was incorrect, as it was petitioner and not Morinaga who bore the burden of proving the actual rent paid by Morinaga on December 1, 2004, and that neither the prior owner's 2004 rent registration nor petitioner's 2005 amended registration for 2004 described the 2004 lease or rent as being preferential. ( Id., Exh. A).
II. CONTENTIONS
Petitioner alleges that DHCR's denial of its PAR was arbitrary, capricious, and irrational as it erroneously determined the base date rent was not preferential despite two renewal leases executed after December 1, 2004 which indicate that petitioner had offered Morinaga a preferential rent while preserving its right to a higher legal regulated rent, and proof that before 2004 Araki paid more than $875 a month, thereby permitting the inference that the $875 charged Morinaga was a preferential rent. Having been unable to produce a copy of the 2004 lease, it contends that DHCR should have relied on the renewal leases as evidence that the $875 rent paid in 2004 was a preferential, rather than a legal regulated rent. Moreover, petitioner maintains that its amendment of the 2004 rent registration was supported by Araki's last lease which set forth a monthly rent of $1,021.59, and that when Araki vacated, Morinaga would not have been entitled to succession rights, and the prior owner would have been entitled to a rent increase of 18 percent, the amount reflected in the amendment. (Pet.).
Notwithstanding this evidence, petitioner asserts that DHCR unreasonably calculated the base date rent as $875 based solely on Morinaga's testimony, which is incredible given her contradictory statements as to when she moved into the apartment. And as there exist unresolved issues of fact, DHCR's failure to conduct a hearing was arbitrary and capricious. Petitioner complains of the imposition of treble damages absent any indication of what evidence DHCR considered to determine whether petitioner's actions were willful, and that its failure to explain its initial determination or address it on appeal constitutes a denial of petitioner's due process rights.
In opposition, DHCR maintains that it properly calculated the base date rent based on petitioner's failure to demonstrate that the 2004 rent charged was preferential, that it was petitioner's burden to do so, that the absence of records from the prior owner does not excuse its failure to satisfy its burden, and that subsequent renewal leases signed by Morinaga are irrelevant. It also argues that it is barred by law from considering the rental history of the apartment prior to December 2004, that even if considered, petitioner failed to prove that earlier rents were preferential, and that Morinaga's credibility is irrelevant to whether the 2004 rent was preferential. It claims that it was not required to hold a hearing on Morinaga's complaint, and that treble damages were properly awarded as petitioner failed to meet its burden of establishing that its overcharges were not willful. (Memorandum of Law, dated Oct. 14, 2010 [DHCR Memo.]).
According to Morinaga, she moved into the apartment in 1998, and any alleged inconsistencies in her statements resulted from her lack of fluency in English and knowledge of housing law. (Affidavit of Yoshiko Morinaga, dated Oct. 21, 2010).
In reply, petitioner argues that DHCR's failure to address Morinaga's inconsistent statements reflects a failure to carefully review the evidence before it, and that DHCR could have considered evidence apart from the 2004 lease and rent ledger to determine whether the 2004 rent was preferential. It reiterates that DHCR's imposition of treble damages was improper, and that even if discretionary, DHCR should have held a hearing given the numerous factual issues. (Reply Affirmation dated Nov. 3, 2010).
III. ANALYSIS
A. Applicable law
The only questions that may be raised in a proceeding to challenge action or inaction by a state or local government agency are, in pertinent part, whether a determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion . . . (CPLR 7801, 7803). The determination of an administrative agency, "acting pursuant to its authority and within the orbit of its expertise, is entitled to deference, and even if different conclusions could be reached as a result of conflicting evidence, a court may not substitute its judgment for that of the agency when the agency's determination is supported by the record." ( Matter of Partnership 92 LP Bldg. Mgt. Co., Inc. v State of NY Div. of Hous. Community Renewal , 46 AD3d 425 , 429 [1st Dept 2007], affd 11 NY3d 859).
In reviewing an administrative agency's determination as to whether it is arbitrary and capricious, the test is whether the determination "is without sound basis in reason and is generally taken without regard to the facts." ( Matter of Pell v Bd. of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale Mamaroneck, Westchester County, 34 NY2d 222, 231; Matter of E.W. Tompkins Co., Inc. v State Univ. of NewYork, 61 AD3d 1248, 1250 [3d Dept 2009], lv denied 13 NY3d 701; Matter of Mankarios v New York City Taxi and Limousine Commn. , 49 AD3d 316 , 317 [1st Dept 2008]; Matter of Soho Alliance v New York State Liq. Auth. , 32 AD3d 363 , 363 [1st Dept 2006]; Matter of Kenton Assocs., Ltd. v Div. of Hous. Community Renewal, 225 AD2d 349 [1st Dept 1996]).
If the court determines that the administrative determination has a rational basis, the court's inquiry is complete; it may not substitute its judgment for that of the administrative agency. ( Paramount Communications, Inc. v Gibraltar Cas. Co., 90 NY2d 507, rearg denied 90 NY2d 1008). Moreover, where a determination is supported by a rational basis, "an administrative agency's construction and interpretation of its own regulations and of the statute under which it functions are entitled to great deference." ( Matter of Arif v New York City Taxi and Limousine Commn ., 3 AD3d 345 [1st Dept 2004], lv granted 2 NY3d 705, appeal withdrawn 3 NY3d 669).
B. DHCR's calculation of the base rent
DHCR administers the New York City Rent Stabilization Law (RSL) and Rent Stabilization Code (RSC). (DHCR Memo.). Pursuant toRSC (9 NYCRR) 2526.1(a)(3)(i), in determining whether a tenant had been overcharged, the proper legal regulated rate to be considered in making that determination is the rent charged on the base date, which is the date four years prior to the filing of the complaint. ( See Rich v East 10th St. Assocs. LLC , 77 AD3d 60 [1st Dept 2010], appeal withdrawn 16 NY3d 741 [same]). The landlord bears the burden of establishing the base date rent. ( Matter of Mangano v New York State Div. of Hous. and Community Renewal , 30 AD3d 267 [1st Dept 2006]).
Moreover, a landlord may charge a tenant a preferential rent, or an amount less than the legal regulated rent, and may thereafter charge the higher rent upon renewal if it is based on the previously established legal regulated rent. (RSL 26-511[c][14]; RSC 2521.2[a]). The legal regulated rent is "previously established" where:
(1)the legal regulated rent is set forth in either the vacancy lease or renewal lease pursuant to which the preferential rent is charged; or
(2)for a vacancy lease or renewal lease which set forth a preferential rent and which was in effect on or before June 19, 2003, and the legal regulated rent was not set forth in either such vacancy lease or renewal lease, the legal regulated rent was set forth in an annual rent registration served upon the tenant in accordance with the applicable provisions of law . . .
(RSC 2521.2[b]).
A preferential rent will not become the legal regulated rent as long as the legal regulated rent has been established within the four-year period. ( Id.; Aijaz v Hillside Place, LLC , 8 Misc 3d 73 [App Term, 2d 11th Jud Dists 2005], mod 37 AD3d 501 [2d Dept 2007]). Moreover, DHCR may not consider the rental history of an apartment prior to the four-year period preceding the overcharge complaint (RSL 26-516[a]; RSC 2521.2[c]; Zafra v Pilkes, 245 AD2d 218 [1st Dept 1997]), absent an allegation of fraud ( Matter of Grimm v State of NY Div. of Hous. and Community Renewal Off. of Rent Admin. , 15 NY3d 358 ).
Here, as petitioner submitted to DHCR no proof as to the rent charged Morinaga in 2004, and as it is undisputed that on December 1, 2004, the date four years before her complaint, she was charged $875 in rent, DHCR properly determined that the $875 constituted the base date rent. (RSC 2526.1[a][3][i]; see Matter of Magnone v Halperin, 238 AD2d 207 [1st Dept 1997] [determination of overcharge properly based on landlord's failure to provide rent history for apartment as of base date]; Matter of Michael M. Lee Co. v NY State Div. of Hous. and Community Renewal, 210 AD2d 485 [2d Dept 1994] [finding of rent overcharge not arbitrary and capricious as petitioner failed to provide rent history documents requested to determine overcharge complaint]; see also In Re Bondam Realty Assocs., L.P., 71 AD3d 477 [1st Dept 2010] [given owner's failure to produce rent records, DHCR's establishment of base rent pursuant to default procedure not arbitrary or capricious]; Matter of Ellis v Div. of Hous. and Community Renewal of State of NY , 45 AD3d 594 [2d Dept 2007] [in absence of renewal lease, DHCR correctly determined that legal regulated rent was rent charged on base date]).
And as petitioner failed to submit to DHCR any documentation showing that the $875 rent constituted a preferential rather than the legal regulated rent or that the legal regulated rent had been previously established, and thus failed to meet its burden, DHCR's determination that the $875 constituted the legal regulated rent on the base date is not arbitrary, capricious or irrational. ( See New York Spot, Inc. v 442 W. 22nd St. LLC, 29 Misc 3d 1228[A], 2010 NY Slip Op 52083[U] [Sup Ct, Kings County 2010] [rent reflected on rent roll was not legal regulated rent as neither initial nor renewal lease mentioned it and thus was not previously established]; Auto Park, Inc. v Bugdaycay , 7 Misc 3d 292 [Civ Ct, New York County 2004] [landlord failed to establish that rent in renewal lease was legal regulated rent absent documentation showing it was based on legal regulated rent set forth in prior lease within four-year period]; see also Matter of Melendez v New York State Div. of Hous. and Community Renewal, 304 AD2d 580 [2d Dept 2003] [absent written agreement between parties, preferential rent charged tenant would remain until tenant vacated]; compare 370 Manhattan Ave. Co., Inc. v Seitz , 20 Misc 3d 9 [App Term, 1st Dept 2008] [landlord was entitled to charge legal regulated rent in renewal lease rather than preferential rent previously offered to tenant, as legal regulated rent had been previously established where it had been listed on lease renewals and annual registration statements and preferential status of rent was also reflected therein]; Les Filles Quartre LLC v McNeur , 9 Misc 3d 179 [Civ Ct, New York County 2005] [as leases from inception of tenancy set forth both legal regulated rent and preferential rent, legal regulated rent had been previously established and landlord entitled to charge it in renewal lease]).
DHCR's rejection of petitioner's contention that it was unable to produce a lease reflecting the rent charged Morinaga on December 1, 2004 rent is also rational absent any assertion that it had even attempted to contact the prior owner. ( See Matter of 4947 Assocs. v New York State Div. of Hous. and Community Renewal, 199 AD2d 179 [1st Dept 1993] ["The owner's failure to obtain a full rental history from the prior owner when it took title to the building . . . did not excuse its default in submitting a full rental history at the overcharge proceeding"]; Matter of Drizin v Commr. of D.H.C.R., 140 AD2d 605 [2d Dept 1988] [building owner not excused from providing rental history of apartment merely because it did not own building at time apartment became rent-stabilized]).
DHCR also properly disregarded evidence of Araki's and Morinaga's rent or leases preceding December 1, 2004 there having raised no issue of fraud. ( Matter of Gomez v New York State Div. of Hous. and Community Renewal , 79 AD3d 878 [2d Dept 2010]; Thornton v Baron , 4 AD3d 258 [1st Dept 2004], affd 5 NY3d 175; Matter of Chiclana v Div. of Hous. and Community Renewal of State of NY, 2007 WL 6916822, 2007 NY Slip Op 34442[U] [Sup Ct, New York County] [DHCR's decision to not examine rental history prior to four-year period rational]). Nor may I consider the pre-December 1, 2004 rental history of the apartment. (CPLR 213-a [precluding examination of rental history prior to four-year period preceding overcharge complaint]).
For the same reason, DHCR had no obligation to address Morinaga's credibility as the issue of when she moved into the apartment is irrelevant to whether petitioner met its burden of establishing that the rent she was charged on the base date was preferential.
For all of these reasons, petitioner has failed to establish that DHCR's determination that the base date rent for Morinaga's apartment was $875 a month is arbitrary, capricious, or irrational. ( See Matter of AVJ Realty Corp. v New York State Div. of Hous. and Community Renewal , 8 AD3d 14 [1st Dept 2004] [DHCR had rational basis for excluding from consideration lease for term prior to four-year period, and determination that legal regulated rate was rate paid by tenant on base date was neither arbitrary nor capricious]).
C. Failure to hold a hearing
DHCR is not required to hold a hearing on an overcharge complaint. (RSC 2527.5 [h] [DHCR may grant or hold hearing]; RSC 2529.7[f] [DHCR Commissioner may grant or hold hearing]; 9 NYCRR 2051.3[b] [hearing need not be held when record is complete based on written submissions]; see Matter of DeSilva v NY State Div. of Hous. and Community Renewal , 34 AD3d 673 [2d Dept 2006] [as DHCR need not hold hearing, petitioner was not denied due process based on DCHR's failure to hold evidentiary hearing]; Matter of Merit Mgt. LLC v NY State Div. of Hous. and Community Renewal, 278 AD2d 178 [1st Dept 2000] [finding of overcharge could be made rationally without hearing]; Matter of El-Kam Realty Co. v NY State Div. of Hous. and Community Renewal, 180 AD2d 412 [1st Dept 1992], lv denied 80 NY2d 755 [DHCR not required to hold hearing; due process requires only reasonable notice and opportunity to present objections]; Matter of Rubin v Eimicke, 150 AD2d 697 [2d Dept 1989], lv denied 75 NY2d 704 [landlord given sufficient due process by receipt of tenant's complaint and opportunity to respond]).
And, as petitioner's argument that there exist factual issues sufficient to warrant a hearing relates solely to the date that Morinaga moved into the apartment, an issue irrelevant to this proceeding ( see supra III.B), DHCR's failure to hold a hearing on Morinaga's complaint was neither arbitrary, capricious, nor irrational, nor did it violate petitioner's due process rights.
D. Imposition of treble damages
Pursuant to RSL 26-526(a), any owner who is found liable to a tenant for a rent overcharge "shall be liable" to the tenant for a penalty equal to three times the amount of such overcharge. However, if the owner establishes, by a preponderance of the evidence, that the overcharge was not willful, the penalty is the amount of the overcharge plus interest. ( See also RSC 2526.1[a][1] [same]). Treble damages are limited to any overcharge that occurred two years before the filing of the overcharge complaint. ( Id.).
The owner or landlord bears the burden of establishing that an overcharge was not willful, and absent such proof, treble damages are assessed. ( Matter of 508 Realty Assocs., LLC v New York State Div. of Hous. and Community Renewal , 61 AD3d 753 [2d Dept 2009]). To establish that an overcharge was not willful, the landlord may introduce evidence regarding the apartment's rental history for more than four years before the complaint. ( Matter of H.O. Realty Corp. v State Div. of Hous. and Community Renewal , 46 AD3d 103 [1st Dept 2007]).
DHCR's determination as to whether to award treble damages is entitled to judicial deference as it is based on its resolution of the issue of whether the landlord proved that the overcharge was willful ( Matter of Waverly Assocs. v New York State Div. of Hous. and Community Renewal , 12 AD3d 272 [1st Dept 2004]), and the court's review is limited to whether there was factual support and a rational basis for DHCR's determination that the overcharge was willful ( Matter of Obiora v NY State Div. of Hous. and Community Renewal , 77 AD3d 755 [2d Dept 2010]).
As petitioner failed to submit to DHCR any records related to the rent charged Morinaga on December 1, 2004, DHCR's determination that petitioner failed to meet its burden of proving that its overcharge was not willful is supported by the record and is rationally based. ( See eg Matter of Tockwotten Assocs., LLC v New York State Div. of Hous. and Community Renewal, 7 AD3d 453 [1st Dept 2004] [treble damages properly awarded as owner failed to produce rent history]; Matter of S.E. K. Corp. v State of NY Div. of Hous. and Community Renewal, 239 AD2d 123 [1st Dept 1997] ["the overcharge [is not] excusable in this instance by the claimed unavailability of a full rental history from the prior owner when petitioner took title."]; Matter of Drizin, 140 AD2d at 606 [DHCR put petitioner on notice that failure to provide rent history could result in treble damages and petitioner failed to show overcharge was not willful]).
Matter of Round Hill Mgt. Co. v Higgins, relied upon by petitioner, is inapposite as there, the court found that treble damages were not warranted notwithstanding the petitioner's failure to provide rent records for a period of time before it took ownership of the building as it "had every reason to suppose, at the time of taking ownership, that the rent then being charged was not in excess of the lawful rent," and the overcharge was the responsibility of the prior owner. ( 177 AD2d 256 [1st Dept 1991]). Here, there is no allegation or proof that the prior owner of petitioner's building overcharged Morinaga; rather, DHCR found that the overcharge began after petitioner purchased the building. Moreover, the court in Round Hill found that the landlord made a "valid but unsuccessful effort" to obtain the rent history from the prior owner. No such showing was made here.
Petitioner has thus failed to demonstrate that DHCR's decision to impose treble damages was arbitrary, capricious, or irrational.
IV. CONCLUSION
For all of these reasons, it is hereby
ORDERED and ADJUDGED, that the petition is denied and the proceeding is dismissed.