AL 510243 RT
STATE OF NEW YORK
DIVISION OF HOUSING AND COMMUNITY RENEWAL
OFFICE OF RENT ADMINISTRATION
92-31 UNION HALL STREET
JAMAICA, NEW YORK 11433
IN THE MATTER OF THE ADMINISTRATIVE ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.: AL-510243-RT
MARIANNE JOHANSSON, DRO DOCKET NO.: L-000636-R
OWNER: MURRIMAC REALTY CORP
ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On December 23, 1986, the above-named petitioner-owner filed a
Petition for Administrative Review against an order issued on
November 19, 1986, by the Rent Administrator, 10 Columbus Circle,
New York New York, concerning the housing accommodations known
as 1256 Lexington Avenue, New York, New York Apartment No. 4A,
wherein the Rent Administrator determined that the owner had
overcharged the tenant.
The Administrative Appeal is being determined pursuant to the
provisions of Section 2526.1 of the Rent Stabilization Code.
The issue herein is whether the Rent Administrator's order was
The Commissioner has reviewed all of the evidence in the record
and has carefully considered that portion of the record relevant
to the issue raised by the administrative appeal.
This proceeding was originally commenced by the filing in August
1984 of a rent overcharge complaint by the tenant who stated in
substance that she believes the owner was overcharging her.
In answer to the complaint, the owner stated in substance that
the tenant's building had less than six apartments and therefore
was not subject to the Rent Stabilization Law.
In Order Number L-000636-R (CDR-27,021), the Rent Administrator
established the lawful stabilization rent as $599.20 effective
July 1, 1984, determined that the tenant had been overcharged
and directed a refund to the tenant of $ 2,740.60 including
interest on that portion of the overcharge collected on and
after April 1, 1984.
AL 510243 RT
In this petition, the tenant alleges in substance that she should
be awarded attorney's fees and treble damages concerning the
overcharge found by the Administrator.
The Commissioner is of the opinion that this petition should be
With regard to the tenant's contention that treble damages should
have been imposed, section 2526.1 of the Rent Stabilization Code
provides in pertinent part that any owner who is found by the
Division of Housing and Community Renewal (DHCR) to have
collected a rent or other consideration in excess of the legal
regulated rent on and after April 1, 1984 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 from the date of the first overcharge on or after April
In the instant case, the owner claimed the building was not
subject to the Rent Stabilization Laws because the subject
building contained less than six apartments. This argument, by
the owner, was ultimately found to be erroneous as the
Administrator found the subject building to be a part of a
horizontal multiple dwelling sharing a common boiler. However,
the owner did establish by a preponderance of the evidence, that
the overcharge was not willful as the owner had a legitimate
reason to believe that the subject apartment was not stabilized.
Accordingly, the imposition of treble damages was not warranted.
With regard to the tenant's contention that she should have been
awarded attorney's fees, it is noted that pursuant to Section
2526.1 (d) of the Rent Stabilization Code, the assessment of
attorney's fees is discretionary. Under the circumstances of
this case, including the arguments raised by the parties in
support of their contentions, the Commissioner deems it
inappropriate to award attorney's fees.
THEREFORE, in accordance with the Rent Stabilization Law and
Code, it is
ORDERED, that this petition for administrative review be, and the
same hereby is, denied, and, that the Order of the Rent
Administrator be, and the same hereby is, affirmed.
JOSEPH A. D'AGOSTA
Acting Deputy Commissioner
AL 510243 RT