ADM. REVIEW DOCKET NOS.: AJ 110383 RO & AJ 110369 RT
STATE OF NEW YORK
DIVISION OF HOUSING AND COMMUNITY RENEWAL
OFFICE OF RENT ADMINISTRATION
GERTZ PLAZA
92-31 UNION HALL STREET
JAMAICA, NEW YORK 11433
------------------------------------X
IN THE MATTER OF THE ADMINISTRATIVE : ADMINISTRATIVE REVIEW
APPEALS OF DOCKET NOS.:
AJ 110383 RO
: AJ 110369 RT
D.R.O. DOCKET NO.
Q 3122300 R
ORIN MANAGEMENT CORP., OWNER, AND
H. & R. SAUERS, TENANTS,
PETITIONERS :
------------------------------------X
ORDER AND OPINION DENYING PETITIONS FOR ADMINISTRATIVE REVIEW
The above-named petitioner-owner and petitioner-tenants filed
timely Petitions for Administrative Review against an order issued
on September 18, 1986, by the District Rent Administrator, 10
Columbus Circle, New York, New York, concerning housing
accommodations known as Apartment 11B, 137-57 75th Avenue,
Flushing, New York, wherein the Rent Administrator determined that
the tenants had been overcharged.
The Commissioner has reviewed all of the evidence in the
record and has carefully considered that portion of the record
relevant to the issues raised by the administrative appeals.
The tenants commenced this proceeding on March 27, 1984 by
filing an overcharge complaint with the New York City Conciliation
and Appeals Board, one of the predecessor agencies to the DHCR.
The tenants took occupancy pursuant to a lease commencing
December 1, 1974 and expiring November 30, 1976 at a monthly
rental of $225.00.
The owner was served with a copy of the tenants' complaint
and was requested to submit rent records to prove the lawfulness
of the rent being charged. The owner submitted a rental history
and leases for the period from September 1, 1969 through November
30, 1984.
In Order Number 22,541, the District Rent Administrator
established the lawful stabilized rent, determined that the
tenants had been overcharged, and directed the owner to refund
overcharges of $3100.49 including interest, to the tenants.
In its petition, the owner contends that the prior tenant
received a special reduced rent, and that the complaining tenants'
ADM. REVIEW DOCKET NOS.: AJ 110383 RO & AJ 110369 RT
rent included an "agreed and understood increase" of $22.62 for
the installation of a washing machine and an air conditioner.
The tenants, by their attorney, responded that the owner's
petition was not executed, and was therefore defective.
In their petition, the tenants allege that treble damages
should have been awarded.
The owner did not respond to the tenants' petition.
The Commissioner is of the opinion that these petitions
should be denied.
In Matter of Collingwood Enterprise v. Gribetz, N.Y.L.J.,
April 24, 1975, p. 17, col. 6 (Sup. Ct. N.Y. Co., Fine, J), it was
found that "nothing...prohibits an owner from charging less than
the maximum rent; and...where an owner failed to charge an
allowable guideline increase prior to the expiration of the
guideline period, the lawful rent upon which the rent guideline
is computed may not be increased to reflect such previous
guideline allowance". An owner is required to compute the new
rent above the rent actually charged and paid on the applicable
base rent date. In this case, the owner submitted no
documentation to support its assertion that the prior tenant had
received a special reduced rent, which would warrant departing
from the Collingwood principle. Therefore this portion of the
owner's petition is denied.
Section 2529.6 of the Rent Stabilization Code limits the
scope of review "to facts or evidence before a Rent Administrator
as raised in the petition." The owner's contention that the
complainant-tenant's rent included an "agreed and understood
increase of $22.62" for installation of a washing machine and an
air conditioner was not raised in the proceeding before the
Administrator and may not be raised for the first time on
administrative appeal. It is noted that the owner has failed to
submit any supporting documentation. Accordingly, the
Commissioner finds that the Administrator was correct in its
finding of overcharge.
Section 26-516 of the Rent Stabilization Law states, in
pertinent part: "Any owner who is found by the DHCR...to have
collected any rent...in excess of the legal regulated rent shall
be ordered to pay to the tenant a penalty equal to three times the
amount of such excess.... If the owner establishes by a
preponderance of the evidence that the overcharge was not willful,
the DHCR shall establish the penalty as the amount of the
overcharge plus interest...."
Whereas the Commissioner has determined that the owner is not
entitled to a rent increase for the air conditioner and washing
machine because of its failure to timely raise the issue, the
Commissioner does find that, based upon the fact that the tenants
have not denied possession of these items, the owner has
ADM. REVIEW DOCKET NOS.: AJ 110383 RO & AJ 110369 RT
established that the overcharge was not willful, and that treble
damages do not lie.
Regarding the tenants' assertion that the owner's petition
was not executed, the Commissioner notes that the photocopy served
upon the tenants was clearly marked "Copy"; and that the Division
has, in its possession, the fully-executed petition, which is not
defective in any respect.
This order of the State Division of Housing and Community
Renewal awarding penalties may, upon the expiration of the period
in which the owner may institute a proceeding pursuant to Article
78 of the Civil Practice Law and Rules, be filed and enforced by a
tenant in the same manner as a judgment, or not in excess of
twenty percent thereof per month may be offset against any rent
thereafter due the owner.
THEREFORE, in accordance with the Rent Stabilization Law and
Code, it is
ORDERED, that these petitions be and the same hereby are
denied and the District Rent Administrator's order be and the
same hereby is affirmed.
ISSUED:
ELLIOT SANDER
Deputy Commissioner
ADM. REVIEW DOCKET NOS.: AJ 110383 RO & AJ 110369 RT
|