AJ 410274 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
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IN THE MATTER OF THE ADMINISTRATIVE ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.: AJ 410274 RT
ROBERT SCHMUKLER,
DRO DOCKET NO.: 3124288 R /
22,651
PETITIONER OWNER: AUDUBON MANAGEMENT INC.
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATOR'S REVIEW
On October 23, 1986, the above-named petitioner-tenant filed a
Petition for Administrative Review against an order issued on
September 17, 1986 by the Rent Administrator, 10 Columbus Circle,
New York, New York concerning housing accommodations known as
159-34 Riverside Drive, Apartment 4D, New York, New York wherein
the Administrator determined that an overcharge had occurred and
directed a refund of $2107.44 inclusive of excess security and
interest on the overcharge occurring on and after April 1, 1984.
The Commissioner has reviewed all of the evidence in the record
and has carefully examined that portion of the record relevant
to the issues raised by the administrative appeal.
This proceeding was originally commenced on March 26, 1984 by the
filing of a rent overcharge complaint by the tenant. In answer
to the complaint, the owner submitted a complete rental history
for the subject apartment.
In the order here under review, the Administrator determined that
the tenant had been overcharged in the amount of $2107.44 and
directed the owner to refund such overcharge to the tenant.
In the appeal, the tenant contends that he is entitled to treble
damages as is provided by the Rent Stabilization Law.
The owner contends that since the overcharge was not wilful, the
Administrator was correct in not assessing treble damages.
The Commissioner is of the opinion that this petition should be
denied.
The Rent Stabilization Law assesses treble damages where an
overcharge is wilful. The statute creates a presumption of
wilfulness subject to rebuttal by a showing of non-wilfulness of
the overcharge by a preponderance of the evidence. The Division
AJ 410274 RT
of Housing and Community Renewal (DHCR) has determined that the
burden of proof in establishing lack of wilfulness shall be
deemed to have been met and, therefore, the treble damages
penalty is inapplicable in some situation, where it is apparent
or where it is demonstrated that the overcharge occurred under
certain specified circumstances as for example where the
overcharge is caused by the hypertechnical nature of the rent
computation such as where the owner "piggy-backed" guidelines
increases within the same guidelines year.
An examination of the record reveals that the instant overcharge
occurred as a result of the owner's "piggy-backing" rent
increases under guidelines order Number 8, i.e. taking an
increase on the prior tenant's lease commencing November 1, 1976
and taking an increase under the same guidelines order number in
this tenant's initial lease commencing June 1, 1977.
Accordingly, the Commissioner finds that treble damages are not
warranted.
This order may, upon the expiration of the period in which the
owner may institute a proceedi g pursuant to Article Seventy-
Eight of the Civil Practice Law and Rules, be filed and enforced
as a judgment or not in excess of twenty percent per month
thereof may be offset against any rent thereafter due the owner.
THEREFORE, in accordance with the provision of the Rent
Stabilization Law and Code, it is
ORDERED, that this petition be, and the same hereby is, denied,
and, that the order of the Rent Administrator be, and the same
hereby is, affirmed.
ISSUED:
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JOSEPH A. D'AGOSTA
Deputy Commissioner
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