Matter of Ok Sun Kim v State of NY Div. of Hous. & Community Renewal
Annotate this CaseDecided on March 6, 2006
Supreme Court, Kings County
In the Matter of the Application of, Ok Sun Kim, Petitioner,
against
State of New York Division of Housing And Community Renewal, Decision and Order , Respondent.
25201-2005
Michael Ambrosio, J.
In this Article 78 proceeding, Petitioner Ok Sun Kim seeks a judgment reversing and annulling the decision and order of respondent State of New York Division of Housing and Community Renewal ("DHCR") dated June 20, 2005 which upheld the finding of rent over charge and the imposition of treble damages.
Petitioner is the owner of a rent-stabilized building located at 99 Nassau Avenue, Brooklyn, New York. On August 19, 2004, tenants Frederic Blasco and Jennifer Pignato filed a rent overcharge complaint in which they alleged that the owner had increased their rent for improvements in the 2003-2004 lease which had also been assessed in their prior lease for the same improvements. In the course of investigating this complaint, DHCR, on three occasions, requested from the petitioner copies of the leases or any other rent records showing the base date rent (August 19, 2000 - four years prior to the complaint). The owner failed to produce either the base date leases or other rents records.
On February 7, 2005, the Rent Administrator issued an order finding a rent overcharge and imposed treble damages totaling $20,027.92. On June 20, 2005, the Deputy Commissioner of DHCR denied the owner's petition for administrative review (PAR) and affirmed the Rent Administrator's February 7, 2005 order. DHCR applied a default formula and directed the petitioner to roll back the rent to $813.91 because the petitioner had failed to provide a complete rent history and the agency did not give probative value to the landlord's various reasons for failing to provide the base date lease.
It is well settled that in reviewing a judgment of the DHCR the court is limited to a review of the record which was before the DHCR and to the question of whether its determination was arbitrary and capricious and without a rational basis (Flagg Court Realty Co v Holland, 265 AD2d 327). Where a rational basis exists, a court may not substitute its judgment for that of the agency (Tockwotten Associates, LLC v DHCR, 7 AD3d 453); indeed, an agency's determination acting pursuant to legal authority and within its area of expertise, is entitle to deference (see, Saluati v Eimicke, 72 NY2d 784; Tockwotten Associates, LLC v DHCR, supra).
The Rent Stabilization Law requires an owner to maintain records from four year prior to the initial or most recent registration of the housing accommodation (see, Administrative Code of NY §26-516[a][ii];[g]; Baig v DHCR, 201 AD2d 726). Since the tenant's complaint of August 19, 2004 [*2]related to the most recent registration, the petitioner was required to produce records from August 19, 2000 under the Code. The petitioner never submitted to DHCR proof of the rents collects or the base date leases for the subject apartment even though she received notice that such documentation was required. She also gave contradictory representations as to the occupancy of the apartment preceding the tenancy of the complaining tenants and gave conflicting reasons why she could not produce any of the requested documents. In the absence of the required documents, DHCR's decision to employ what it called a "default" method for calculating the lawful rent was rational and treble damages were properly awarded since the owner failed to produce the rent history (see, Tockwotten Associates, LLC v DHCR, supra; Cabrini Realty LLC v DHCR, 6 AD3d 280; Clear Holding Co v DHCR, 268 AD2d 430; Derfner Mgmt Co v DHCR, 252 AD2d 555; Baig v DHCR, supra).
Finally, this court is precluded from considering newly-submitted evidence, namely the unsigned lease of Leslie Bonilla, the former tenant who occupied the subject apartment on the base date, since the petitioner did not present this evidence to DHCR before the determination under review (see, Flagg Court Realty Co v Holland, supra).
In view of the foregoing, the petitioner's request to vacate the decision and order of June 20, 2005 is denied and the petition is dismissed.
This constitutes the Decision and Order of the Court.
Dated: March 6, 2006
______________________________
Michael A. Ambrosio
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