Schnall v. Lynch

—Judgment, Supreme Court, New York County (Leland DeGrasse, J.), entered March 16, 2001, which denied the petition and dismissed the proceeding brought pursuant to CPLR article 78 to annul a determination of respondent Division of Housing and Community Renewal (DHCR) dated August 10, 2000, denying petitioner’s petition for administrative review insofar as such petition sought treble damages and imposition of liability on respondent Faith Ministries, the successor landlord, for a purported rent overcharge, and order, same court and Justice, entered on or about September 18, 2001, which, to the extent appealable, denied petitioner’s motion for renewal, unanimously affirmed, without costs. Inasmuch as respondent DHCR’s determination to treat petitioner tenant’s excessive rent claim as a fair market rent appeal rather than one to recover for an illegal rent overcharge was rationally based and thus not subject to judicial disturbance (see, Matter of Pell v Board of Educ., 34 NY2d 222, 231; Greystone Mgt. Corp. v Conciliation & Appeals Bd., 94 AD2d 614, 616-617, affd 62 NY2d 763; and see, Matter of 1781 Riverside v New York State Div. of Hous. & Community Renewal, 287 AD2d 255), petitioner is not entitled to an award of treble damages (see, Mendelson v Empire Assoc. Realty Co. Assn., 278 AD2d 40), and respondent successor landlord Faith Ministries, having had no notice of the fair market rent appeal, is not liable for repayment of excess rent (see, Matter of [181] Helfand v Division of Hous. & Community Renewal, 182 Misc 2d 1, 9; DHCR Policy Statement 93-1). Renewal was properly denied since petitioner offered no explanation as to why the purportedly new matter was not offered on the initial application. We have considered petitioner’s remaining arguments and find them unavailing. Concur—Andrias, J.P., Rosenberger, Wallach, Rubin and Friedman, JJ.