Opinion
2017–01619 Index No. 61332/16
03-06-2019
In the Matter of SOUTH LEXINGTON ASSOCIATES, LLC, Appellant, v. NEW YORK STATE DIVISION OF HOUSING AND COMMUNITY RENEWAL, Respondent.
Cooper & Paroff, P.C., Kew Gardens, N.Y. (Ira G. Cooper, Kew Gardens, and Jeffrey Turkel, New York, of counsel), for appellant. Mark F. Palomino, New York, N.Y. (Patrice Huss of counsel), for respondent.
Cooper & Paroff, P.C., Kew Gardens, N.Y. (Ira G. Cooper, Kew Gardens, and Jeffrey Turkel, New York, of counsel), for appellant.
Mark F. Palomino, New York, N.Y. (Patrice Huss of counsel), for respondent.
MARK C. DILLON, J.P., JEFFREY A. COHEN, COLLEEN D. DUFFY, LINDA CHRISTOPHER, JJ.
DECISION & ORDERIn a proceeding pursuant to CPLR article 78 to review a determination of a deputy commissioner of the respondent, New York State Division of Housing and Community Renewal, dated June 21, 2016, which denied a petition for administrative review and affirmed a Rent Administrator's determination dated January 12, 2016, finding that the petitioner had overcharged a tenant, and awarded the tenant treble damages for the rent overcharge, the petitioner appeals from a judgment of the Supreme Court, Westchester County (Anne E. Minihan, J.), dated January 24, 2017. The judgment denied the petition and dismissed the proceeding.
ORDERED that the judgment is affirmed, with costs.
The respondent, New York State Division of Housing and Community Renewal (hereinafter the DHCR), commenced an administrative proceeding against the petitioner, the landlord of the subject apartment. The DHCR alleged that the petitioner overcharged rent to the tenant of the apartment. Upon a determination by a Rent Administrator that the petitioner overcharged the tenant, the DHCR imposed treble damages. Thereafter, the petitioner filed a petition for administrative review of the Rent Administrator's determination; that petition was denied. Thereafter, the petitioner commenced this CPLR article 78 proceeding to review the DHCR's determination denying the petition for administrative review, upholding the Rent Administrator's determination, and awarding treble damages. In a judgment dated January 24, 2017, the Supreme Court denied the petition and dismissed the proceeding.
The petitioner failed to submit the rent records necessary to establish the legal stabilized rent for the apartment. Accordingly, the DHCR had a rational basis for applying the default formula to calculate the legal rent (see Matter of 65–61 Saunders St. Assoc., LLC v. New York State Div. of Hous. & Community Renewal, 154 A.D.3d 930, 931, 63 N.Y.S.3d 455 ; Matter of DeSilva v. New York State Div. of Hous. & Community. Renewal Off. of Rent Admin., 34 A.D.3d 673, 674, 825 N.Y.S.2d 113 ).
Contrary to the petitioner's contention, the imposition of treble damages was not arbitrary or capricious and had a rational basis in the record (see Matter of DeSilva v. New York State Div. of Hous. & Community Renewal Off. of Rent Admin., 34 A.D.3d at 674, 825 N.Y.S.2d 113 ; Matter of Ador Realty, LLC v. Division of Hous. & Community Renewal, 25 A.D.3d 128, 141, 802 N.Y.S.2d 190 ). The burden is on an owner to establish that an overcharge is not willful (see Matter of DeSilva v. New York State Div. of Hous. & Community Renewal Off. of Rent Admin., 34 A.D.3d at 673, 825 N.Y.S.2d 113 ; Matter of Ador Realty, LLC v. Division of Hous. & Community Renewal, 25 A.D.3d at 140, 802 N.Y.S.2d 190 ). Treble damages are properly imposed where, as here, the owner fails to carry that burden by a preponderance of the evidence (see Matter of DeSilva v. New York State Div. of Hous. & Community Renewal Off. of Rent Admin., 34 A.D.3d at 674, 825 N.Y.S.2d 113 ; see also Matter of 508 Realty Assoc., LLC v. New York State Div. of Hous. & Community Renewal, 61 A.D.3d 753, 754, 877 N.Y.S.2d 392 ).
The petitioner's remaining contentions are without merit.
Accordingly, we agree with the Supreme Court's determination denying the petition and dismissing the proceeding.
DILLON, J.P., COHEN, DUFFY and CHRISTOPHER, JJ., concur.