IN RE: Application of Mordy SOHN

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Supreme Court, Appellate Division, First Department, New York.

IN RE: Application of Mordy SOHN, Petitioner-Appellant, For a Judgment, etc., v. NEW YORK STATE DIVISION OF HOUSING AND COMMUNITY RENEWAL, Respondent-Respondent.

Decided: February 23, 1999

SULLIVAN, J.P., ELLERIN, WILLIAMS and WALLACH, JJ. Karen Schwartz-Sidrane, for Petitioner-Appellant. Geoffrey T. Hoderath, for Respondent-Respondent.

Judgment and order (one paper), Supreme Court, New York County (William McCooe, J.), entered April 24, 1998, which denied petitioner landlord's application pursuant to CPLR article 78 to annul respondent's determination of a rent overcharge and imposed treble damages, and dismissed the petition, unanimously affirmed, without costs.

Even if the parties' stipulation did require DHCR to consider additional evidence in determining the remitted Petition for administrative review, no violation of the stipulation occurred since respondent did in fact consider such evidence.   Substantively, we agree with Supreme Court that the administrative record supports, and a rational basis exists, for respondent's findings that petitioner failed to produce credible evidence to establish the existence of improvements justifying a rent increase and, thus, did not rebut the presumption that the subject overcharge was willful, warranting imposition of treble damages (see, Matter of Herman v. New York State Div. of Hous. and Community Renewal, 239 A.D.2d 305, 658 N.Y.S.2d 856, lv. denied 91 N.Y.2d 807, 669 N.Y.S.2d 260, 692 N.E.2d 129).   We have considered petitioner's remaining arguments and find them unavailing.


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