173 A.D.2d 371, 570 N.Y.S.2d 7

Supreme Court, Appellate Division, First Department, New York

In the Matter of 30 Seaman Avenue Company, Appellant,
v.
Richard Higgins, as Commissioner of the New York State Division of Housing and Community Renewal, et al., Respondents.

May 23, 1991

Order and judgment (one paper), Supreme Court, New York County (Martin Schoenfeld, J.), entered on December 27, 1990, which, inter alia, granted the petitioner’s CPLR article 78 petition challenging a final order of respondent Division of Housing and Community Renewal (DHCR) dated January 30, 1990 only to the extent of remanding the proceeding to the DHCR for determination of amount, if any, of damages that should be awarded for such periods of time in which respondent Brenda Ratliff did not pay rent to petitioner and for a modification of the treble damages award accordingly, and otherwise denied the article 78 petition, and granted respondent Ratliff judgment against the petitioner in the amount of $19,632.33, unanimously modified, on the law and the facts and in the interest of justice, to delete the last two decretal paragraphs, and otherwise affirmed. Judgment of the same court entered on January 7, 1991, in favor of respondent Ratliff in the total amount of $23,984.46, unanimously reversed, on the law, the facts and in the exercise of discretion, and vacated without prejudice to the entry of a judgment in favor of respondent Ratliff on the basis of respondent DHCR’s determination on remand, without costs.

On appeal, DHCR concedes, and we agree that a final money judgment should not have been entered in favor of the tenant until after DHCR renders a final order on the remand, to which DHCR consented. Otherwise, we find the determination of DHCR that there was a willful overcharge of rent, despite allegations of improvements made to the subject apartment for the period December 1, 1986 through August 31, 1988, supported by the record. The landlord had ample opportunity to demonstrate the legitimate expenditure of $12,160 and failed to do so (see, Matter of 985 Fifth Ave. v State Div. of Hous. & Community Renewal, 171 AD2d 572).

We have reviewed petitioner’s remaining arguments and find them to be without merit.

Concur–Sullivan, J. P., Carro, Rosenberger, Ross and Smith, JJ.

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