Velasquez v. New York State Division of Housing & Community Renewal, 130 A.D.3d 1045 (2015)

The Supreme Court properly denied the Marrones’ counterclaim challenging the determination to impose a penalty of treble damages for the overcharges during the period of November 2008 through December 2009. Pursuant to Rent Stabilization Law of 1969 (Administrative Code of City of NY) § 26-516 (a), “once the occurrence of a rent overcharge has been established, it becomes incumbent upon the landlord to establish by a preponderance of the evidence that the overcharge was not willful” (Matter of Obiora v New York State Div. of Hous. & Community Renewal, 77 AD3d 755, 756 [2010]; see Matter of Metropolitan 118-80 Ltd. Partnership v New York State Div. of Hous. & Community Renewal, 83 AD3d 944 [2011]). Since the DHCR determined that the Marrones failed to carry that burden, our review is limited to determining whether there is “ ‘record support and a rational basis’ for that determination” (Matter of Ador Realty, LLC v Division of Hous. & Community Renewal, 25 AD3d 128, 141 [2005], quoting Matter of Century Tower Assoc. v State of N.Y. Div. of Hous. & Community Renewal, 83 NY2d 819, 823 [1994]). The determination of the DHCR that the Marrones failed to carry that burden was not arbitrary and capricious, and had a rational basis (see Matter of Metropolitan 118-80 Ltd. Partnership v New York State Div. of Hous. & Community Renewal, 83 AD3d 944 [2011]; Matter of Obiora v New York State Div. of Hous. & Community Renewal, 77 AD3d at 756). Hall, J.P., Sgroi, and Barros, JJ., concur. --- 030concurrence by Skelos ---