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450-452 East 81st Street, LLC v. New York State Division of Housing and Community Renewal

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


February 16, 2010

IN RE 450-452 EAST 81ST STREET, LLC, PETITIONER-APPELLANT,
v.
NEW YORK STATE DIVISION OF HOUSING AND COMMUNITY RENEWAL, ET AL., RESPONDENTS-RESPONDENTS.

Judgment, Supreme Court, New York County (Nicholas Figueroa, J.), entered December 10, 2008, dismissing a proceeding to challenge an administrative decision that affirmed a Rent Administrator's determination that the apartment in question remained subject to rent stabilization, froze the rent at $1,325, imposed treble damages, and granted the tenant a $495 refund after deducting $7,950 in rent arrears, 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.

Gonzalez, P.J., Saxe, Moskowitz, Abdus-Salaam, RomÁn, JJ.

107201/08

Even considering evidence as to renovations made in the apartment more than four years before the filing of the overcharge complaint, petitioner failed to meet its burden of proving it did not willfully charge excessive rent, or that DHCR's order was arbitrary or capricious (see Matter of H.O. Realty Corp. v State of N.Y. Div. of Hous. & Community Renewal, 46 AD3d 103 [2007]). In light of contradictory evidence submitted by petitioner that the work had actually been completed, the determination was appropriately "committed to the discretion of DHCR" (Matter of Ador Realty, LLC v Division of Hous. & Community Renewal, 25 AD3d 128, 140 [2005]). Nor was there any evidence that the owner had ever charged rent for this apartment in excess of $2000 (which would have resulted in high-rent vacancy deregulation), or that any of the rents were preferential.

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

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

20100216

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