Branch v. State Division of Housing & Community Renewal

217 A.D.2d 581, 628 N.Y.S.2d 975, 1995 N.Y. App. Div. LEXIS 7684

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 10, 1995
• Status: Published

Opinion

In a proceeding pursuant to CPLR article 78 to review a determination of the State Division of Housing and Community Renewal, Office of Rent Administration, dated December 15,1992, which, inter alia, determined that the petitioner had overcharged the complaining tenant on rent, the petitioner appeals from a judgment of the Supreme Court, Kings County (I. Aronin, J.), dated November 4, 1993, which dismissed the proceeding.

Ordered that the judgment is affirmed, with costs.

Contrary to the petitioner’s contentions on appeal, the determination of the respondent State Division of Housing and Community Renewal, Office of Rent Administration that she had overcharged the complaining tenant on rent was neither arbitrary nor capricious nor an abuse of discretion (see, Matter of Ansonia Residents Assocs. v New York State Div. of Hous. & Community Renewal, 75 NY2d 206; Matter of Fanelli v New York City Conciliation & Appeals Bd., 90 AD2d 756, affd 58 NY2d 952). Further, once it was properly determined that such overcharges had occurred, the burden shifted to the petitioner to establish that they were not willful (see, Administrative Code of City of NY § 26-516 [a]; Matter of Wai Leung Chan v New York State Div. of Hous. & Community Renewal, 207 AD2d 552). Having failed to meet this burden, the petitioner was properly penalized treble damages (see, Matter of Wai Leung Chan v New York State Div. of Hous. & Community Renewal, supra). Rosenblatt, J. P., Ritter, Joy and Krausman, JJ., concur.