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462 Amsterdam, LLC v. New York State Division of Housing and Community Renewal

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


April 21, 2009

IN RE 462 AMSTERDAM, LLC, PETITIONER-APPELLANT,
v.
NEW YORK STATE DIVISION OF HOUSING AND COMMUNITY RENEWAL, RESPONDENT-RESPONDENT.

Judgment, Supreme Court, New York County (Joan A. Madden, J.), entered April 25, 2008, which denied petitioner owner's application to annul respondent Division of Housing and Community Renewal's (DHCR) determination of a rent overcharge in the amount of $7,130 and treble damages in the amount of $21,690, and dismissed the petition, unanimously affirmed, without costs.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Friedman, J.P., Sweeny, Catterson, Renwick, Freedman, JJ.

107141/07

The determination that the value of petitioner's claimed costs for improvements on the subject apartment was $36,890, rather than $51,000, was rationally based upon the record, and was neither arbitrary nor capricious (see BN Realty Assoc. v State of New York Div. of Hous. & Community Renewal, 254 AD2d 7 [1998], lv denied 93 NY2d 806 [1999]). The $7,130 in overcharges was rationally based upon a 1995 rent reduction order which was in effect at the relevant time. Finally, where the ownership of the property had remained continuous and petitioner was in fact aware of this order, the DHCR had a rational basis for concluding that the owner failed to establish that the overcharge was not willful or negligent, and thus, for imposing treble damages (see Matter of Tockwotten Assocs., LLC v New York State Div. of Hous. & Community Renewal, 7 AD3d 453, 455 [2004]).

We have considered petitioner's remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20090421

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