Docket Number: BE-110076-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.: BE 110076-RT
BETTY PERRY, DRO DOCKET NO.: Q 312126OR
ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
AND MODIFYING ADMINISTRATOR'S ORDER
On May 19, 1987, the above-named petitioner-tenant filed a Petition
for Administrative Review against an order issued on April 14, 1987,
by an Administrator concerning the housing accommodation known as
89-29 163rd Street, Jamaica, New York, Apartment 5M, wherein the
Administrator determined that the tenant of the above-mentioned
apartment had been overcharged in the amount of $3,383.12 including
interest on those overcharges made on or after April 1, 1984.
The Commissioner notes that this proceeding was initiated prior to
April 1, 1984. Sections 2526.1(a)(4) and 2521.1(d) of the Rent
Stabilization Code (effective May 1, 1987) governing rent overcharge
and fair market rent proceedings provide that determination of these
matters be based upon the law or code provisions in effect on March
31, 1984. Therefore, unless otherwise indicated, reference to
Sections of the Rent Stabilization Code (Code) contained herein are
to the Code in effect on April 30, 1987.
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 March 1984
of a general rent overcharge complaint by the tenant. The tenant
stated in the Complaint that she moved into the subject apartment on
October 1, 1978 pursuant to a written 3 year lease at a rental of
$285.00. She alleged that the former tenant was paying only $185.00
per month and that despite several oral requests and a subpoena
duces tecum issued March 25, 1983 (Index #L+T 16993/83) the owner
had not given her a rental history.
The owner was served with a copy of the tenant's complaint and was
requested to submit copies of all leases or rent records to prove
the lawfulness of the rent being charged.
Docket Number: BE-110076-RT
The owner responded asserting that they had entered into an
Assurance of Discontinuance with the Attorney General's office. The
Division requested a copy of the assurance to which the owner did
By letter dated January 12, 1987, the DHCR asked the tenant to
submit copies of the leases she had entered into since her initial
occupancy of the subject premises. In response, the tenant
submitted a copy of a lease dated October 1, 1978 through September
30, 1981, copies of lease renewal riders for the period October 1981
through September 1987, a copy of the subpoena duces tecum issued
March 18, 1983 (Index #L+T/16993/83) and receipts for bills in
payment to the owner for fuel surcharges and "legal fees" covering
the period August 1980 through October 1981.
The owner was sent a Final Notice of Pending Default on February 23,
1987 and in response, the owner simply stated that the apartment has
been stabilized since 1965 and was never subject to rent control.
In the absence of a complete rental history, an order was issued
using the default rent computation method. The District Rent
Administrator determined that the lawful stabilized rent for the
tenant's initial lease of October 1, 1978 through September 30, 1981
was $251.10; subsequent rent guidelines increases revealed that the
tenant had been overcharged in the amount of $3,383.12, including
interest on those overcharges collected on or after April 1, 1984.
In her petition the tenant contends that the Administrator's order
is unfair as the overcharge determination is not based on an
analysis of the full rental history for the subject apartment which
the tenant asserts it was the owner's duty to provide. The tenant
further alleges that the owner deliberately withheld disclosure of
the full rental history in a calculated attempt to deny the tenant a
larger overcharge award. The tenant also believes that the
overcharge was deliberate on the owner's part and thereby requests
that treble damages be imposed.
The owner's answer to the tenant's petition is that the petition
should be dismissed as untimely.
After careful consideration the evidence of record, the Commissioner
is of the opinion that this petition for administrative review
should be granted.
It is noted initially that the owner's assertion that the tenant's
petition is untimely is without merit. The Administrator's order
was issued on April 14, 1987 and the petition was filed on May 19,
1987, the 35th day, which satisfies the timeliness requirements
specified in Section 2529.2 of the Rent Stabilization Code.
The tenant in her petition seeks an award of treble damages as a
penalty for the owner's persistent refusal to submit rent records.
Section 2526.1 of the Code provides that an owner who is found by
DHCR to have collected rent in excess of the legal regulated rent
Docket Number: BE-110076-RT
shall be ordered to pay to the tenant a penalty equal to three times
the amount of such excess, unless the owner establishes by a
preponderance of the evidence that the overcharge was not wilful.
Given the case of J.R.D. Mgt. v. Eimicke, 148 A.D.2d 610,539
N.Y.S.2d 667 (App. Div. 2d Dept. 1989), which held that an owner of
a building located in the Second Department was not required to
submit a rental history before April 1, 1980 in a rent overcharge
proceeding initiated before April 1, 1984, the Commissioner does not
find that the imposition of treble damages is warranted in this
case. The Commissioner affirms the finding of overcharges because
the owner failed to file a petition for administrative review
against the Administrator's order.
THEREFORE, in accordance with the Rent Stabilization Law and Code,
ORDERED, that this petition be and the same hereby is granted and
the Administrator's order be and the same hereby is modified in
accordance with this order and opinion.