IN RE: John DeSILVA (2006)

Proceeding pursuant to CPLR article 78 to review a determination of the respondent, New York State Division of Housing and Community Renewal Office of Rent Administration, dated November 23, 2004, which denied a petition for administrative review and confirmed a determination of the Rent Administrator dated August 12, 2004, awarding the tenant treble damages for rent overcharges.

ADJUDGED that the determination is confirmed, the petition is denied, and the proceeding is dismissed on the merits, with costs.

This proceeding was improperly transferred to this court by the Supreme Court, Kings County, pursuant to CPLR 7804(g) (see Matter of Pabon v. Phillips, 16 A.D.3d 589, 590, 790 N.Y.S.2d 879;  Thurman v. Holahan, 123 A.D.2d 687, 507 N.Y.S.2d 52).   However, for purposes of judicial economy we will retain jurisdiction and decide this case on the merits (see Matter of Pabon v. Phillips, supra;  Thurman v. Holahan, supra ).

 The petitioner, the landlord of the subject apartment, failed to submit the rent records necessary to establish the legal stabilized rent for the apartment.   Consequently, the respondent, New York State Division of Housing and Community Renewal Office of Rent Administration (hereinafter the DHCR), had a rational basis for applying the default formula (see Clear Holding Co. v. State Div. of Hous. & Community Renewal, 268 A.D.2d 430, 702 N.Y.S.2d 329).

 The burden is on the owner to establish that an overcharge is not willful (Matter of Ador Realty, LLC v. Division of Hous. & Community Renewal, 25 A.D.3d 128, 140, 802 N.Y.S.2d 190).   Treble damages are properly imposed when the owner fails to carry that burden by a preponderance of the evidence (id. at 140-141, 802 N.Y.S.2d 190;  see also Gattiboni v. Aponte, 188 A.D.2d 434, 592 N.Y.S.2d 1).   Contrary to the petitioner's contention, the determination of the DHCR to award the tenant treble damages for rent overcharges was not arbitrary and capricious, and had a rational basis (see Matter of Condo Units v. New York State Div. of Hous. & Community Renewal, 4 A.D.3d 424, 771 N.Y.S.2d 380;  cf. Matter of Rego Estates v. Division of Hous. & Community Renewal, 20 A.D.3d 539, 540, 799 N.Y.S.2d 539).

 The petitioner was not denied due process of law because the DHCR did not conduct an evidentiary hearing (see Richter v. New York State Div. of Hous. & Community Renewal, 204 A.D.2d 648, 614 N.Y.S.2d 227).   The DHCR need not conduct a hearing when the record is complete based on evidentiary submissions (see 9 NYCRR § 2051.3[b] ).  Absent a requirement that the DHCR hold a hearing, “all that due process requires is that reasonable notice be afforded to the parties to a proceeding and that they have an opportunity to present their objection” (Rubin v. Eimicke, 150 A.D.2d 697, 698, 541 N.Y.S.2d 570).

The petitioner's remaining contentions are without merit.