912 N.Y.S.2d 846
29 Misc.3d 1144
In the Matter of the Application of WASHINGTON 921 LIMITED PARTNERSHIP, Petitioner, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules
v.
NEW YORK STATE DIVISION OF HOUSING AND COMMUNITY RENEWAL, Respondent.
Supreme Court, Kings County, New York.
Sept. 23, 2010.912 N.Y.S.2d 847
Erez Glambosky, New York City, for petitioner.
Andrew M. Cuomo, Attorney General, for respondent.
DAVID I. SCHMIDT, J.
Upon the foregoing papers,
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petitioner Washington 921 Limited Partnership seeks judicial review, under CPLR article 78, of an order by respondent New York State Division of Housing and Community Renewal (DHCR) which denied petitioner's petition for administrative review (PAR) and affirmed a determination of the Rent Administrator (RA) establishing the legal regulated rent for the subject apartment and finding a rent overcharge.This proceeding originated on August 18, 2008 with the filing of a rent overcharge complaint by the tenants occupying apartment 6K in petitioner's building at 921 Washington Avenue in Brooklyn. The tenants took occupancy of the apartment on September 1, 2006 pursuant to a one-year lease with a monthly rent of $1,500.00. The tenants thereafter signed a one-year renewal lease for a monthly rent of $1,563.75. In their complaint, the tenants alleged that the monthly rent in the amount of $1,563.75 was excessive since the "last tenant [petitioner could] prove to pay rent only paid $816.52" and petitioner made only minor improvements to the apartment which could not justify their present rent. In addition to their complaint, the tenants submitted a DHCR printout listing the annual registration information for the subject apartment. The printout indicated that Geneve Gifford occupied the apartment pursuant to a two-year lease for the term October 1, 2003 to September 30, 2005 with a legal regulated rent of $816.52 and that "ALL BORO" was the "tenant" of the apartment for the term July 1, 2005 to June 30, 2006 with a legal regulated rent of $1,200.00. In response to the complaint, petitioner submitted a letter, received by the DHCR on November 12, 2008, which stated that the tenants were, in fact, overcharged in rent in the amount of $7,265.09 (inclusive of 9% interest), that a refund check for this amount had been delivered to the tenants and that the rent for the tenant's current lease was adjusted to $1,344.63. Petitioner further requested that treble damages not be assessed because it relied
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in good faith upon the leases and DHCR registrations that were transferred to them by the previous owner following petitioner's purchase of the building in December 2007.
On July 9, 2009, the RA issued an order finding a rent overcharge in the amount of $24,268.88, with interest in the amount of $3,473.22. In calculating the base date rent of $536.90, the RA used a default formula, adopting the lowest rent charged for a rent-stabilized apartment with the same number of rooms in the same building on the base date. The RA stated that the default formula was used in calculating the legal regulated rent on the base date (August 18, 2004) as petitioner failed to submit a base date lease as requested. The RA further stated that the rent calculation chart reflects the tenants' payments based on adjustments due to petitioner's
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refund ($6,604.42) and that the interest on the refund amount ($660.97) is reflected on the rent calculation chart as a "refund." The RA did not assess treble damages on the overcharge...
