ADM. REVIEW DOCKET NO.: AL 710546 RO
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.: AL 710546 RO
: DRO DOCKET NO.:
F-A-J-7-1-005-RV
BERGEN FREEPORT ASSOC.
PETITIONER :
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ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
IN PART AND MODIFYING RENT ADMINISTRATOR'S ORDER
On December 29, 1986, the above-named petitioner-owner filed
a Petition for Administrative Review against an order issued on
December 23, 1986, by the Rent Administrator, 50 Clinton Street,
Hempstead, NY, concerning housing accommodations known as
Apartment No. 3P located at 190 W. Merrick Road, Freeport, NY.
The Administrator determined that petitioner had offered an
improper renewal lease. A rent overcharge of $889.56 was
computed.
The Commissioner has reviewed the record and carefully
considered that portion relevant to the issues raised by this
appeal.
The tenant commenced this proceeding on October 15, 1986 by
filing a complaint of owner's failure to renew lease. Tenant
claimed that the landlord failed to offer him a lease renewal on
an RTP-8 form lease as prescribed by Section 45 of the Tenant
Protection Regulations for the lease term commencing July 1,
1985. The lease offered to the tenant, though not an RTP-8,
offered a one or two year renewal. The tenant chose the two year
renewal at a new rent of $667.12. The owner did not respond to
the complaint.
The Administrator granted the complaint. The lease offered
by the owner was found to be in violation of Section 45 of the
Regulations. Pursuant to the mandate of that section the
Administrator found that the guideline increase agreed to by the
tenant was invalid. An overcharge of $49.42 per month for 18
months, or $889.56 was assessed.
On appeal the petitioner argues substantial compliance with
the Regulations. It claims that there was no overcharge in the
rent offered and that it is being penalized solely for not using
the RTP-8.
After a careful review of the evidence in the record, the
ADM. REVIEW DOCKET NO.: AL 710546 RO
Commissioner is of the opinion that the petition should be
granted in part and the Administrator's order should be modified.
Section 2503.5 of the Tenant Protection Regulations provides
that a lease renewal notice must be on a form prescribed by the
Division, notifying the tenant in occupancy by certified mail not
more than 120 days and not less than 90 days prior to the end of
the tenant's lease of the right to renew and giving the tenant a
period of 60 days from the date of mailing to accept the offer.
Although the owner herein did not comply with this requirement, a
comparison of the RTP-8 form that the owner should have used with
the form the owner did use reveals that the tenant was not
prejudiced in any way by the owner's error and in fact was
granted more time than the Code requires to select a renewal
option. Moreover, the tenant waited for more than a year before
filing a complaint, subjecting the owner to a greater financial
liability than if he had filed a complaint when the incorrect
form was first served on him.
Based on the particular circumstances of this case, the
Commissioner finds that the penalty assessed by the Administrator
of eliminating a guideline increase until a proper renewal form
is offered and directing a refund of all overcharges collected
was excessive. A more appropriate penalty would be a $250 fine
payable to the tenant as authorized by Section 2506.2 of the
Tenant Protection Regulations which allows such a penalty when a
landlord engages in an act prohibited by the Regulations.
The owner is cautioned that its failure to use DHCR's forms
in the future will subject the owner to the penalty of the
elimination of a guideline.
THEREFORE, in accordance with the Emergency Tenant
Protection Act and Tenant Protection Regulations, it is
ORDERED, that this petition be and the same hereby is
granted in part and the Administrator's order be and the same
hereby is modified to direct the landlord to pay $250 to the
tenant for failure to use the form prescribed by the Division for
renewal of the lease commencing July 1, 1985. The directive to
refund $889.56 and to eliminate a guidelines increase until a
proper renewal form is served is hereby revoked.
ISSUED:
ELLIOT SANDER
ADM. REVIEW DOCKET NO.: AL 710546 RO
Deputy Commissioner
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