IN RE: Application of S.E. & K. CORPORATION (1997)

Order and judgment (one paper), Supreme Court, New York County (Ira Gammerman, J.), entered on or about January 25, 1994, which denied petitioner landlord's application pursuant to CPLR article 78 to annul respondent's award of treble damages to the tenant in a rent overcharge proceeding, and dismissed the petition, unanimously affirmed, without costs.

 Petitioner failed to show by a preponderance of the evidence that the overcharge was not willful (Rent Stabilization Code [9 NYCRR] § 2526.1[a] [1] ).  Petitioner's excuse that its inexperience as a landlord caused it to be misled by the advice of the prior owner that a fair market rent could be charged for the apartment once the tenant who was then in occupancy moved out raised an issue of credibility for respondent, which it properly resolved against petitioner on the basis that the complainant's initial rent would have represented an unlawful increase even if petitioner were entitled to charge a fair market rent.   Nor is the overcharge excusable in this instance by the claimed unavailability of a full rental history from the prior owner when petitioner took title (see, Matter of 4947 Assocs. v. New York State Div. of Hous. & Community Renewal, 199 A.D.2d 179, 605 N.Y.S.2d 91).   We have considered petitioner's remaining contentions and find them to be without merit.

MEMORANDUM DECISION.