Adm. Review Docket Number: BJ 130223-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.: BJ 130223-RO
:
CONCERNED MANAGEMENT CORP., DISTRICT RENT ADMINISTRATOR'S
DOCKET NO.:
PETITIONER-OWNER : 26497 EXAMINING UNIT
------------------------------------X TENANT: ALEXANDER POKROPIVNY
ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On October 15, 1987, the above-named petitioner filed a Petition for
Administrative Review against an order issued on September 11, 1987
by the Rent Administrator, 10 Columbus Circle, New York, New York
concerning the housing accommodation known as 87-46 Chelsea Road,
Apartment 7-K, Jamaica, New York wherein the Administrator
determined that an overcharge had been collected and directed the
owner to refund $1,384.58 inclusive of excess security and treble
damages on the overcharge occurring on and after April 1, 1984.
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 in the appeal.
This proceeding was commenced when the tenant filed a timely
objection to the 1984 Registration, claiming that the rent being
paid was an overcharge. The tenant submitted copies of leases for
the subject apartment and requested reimbursement of a portion of
the additional charge being paid for a new refrigerator.
In reply, the owner stated that since the refrigerator charge was in
accord with the Rent Stabilization Law, the complaint should be
dismissed. The owner submitted a copy of the lease in effect on the
base date, April 1, 1980, and a copy of the tenant's consent to the
installation of a new refrigerator.
On September 11, 1987, the Administrator issued the order here under
review, finding that an overcharge had occurred and directing the
owner to refund $1,384.58 inclusive of excess security and treble
damages on the overcharges collected on and after April 1, 1984.
On appeal, the owner, contends that the Administrator's order is
arbitrary and capricious as to the law and facts and therefore must
be reversed. The owner states that the tenant and the former owner
had agreed to the total rent resulting from the appliance increase.
Moreover the current owner had purchased the subject building at
foreclosure and consequently did not have the prior records which
would have revealed the overcharge. Furthermore, the owner contends
that as no evidence of willfulness had been submitted, the
imposition of treble damages was arbitrary and capricious.
Although afforded the opportunity to do so, the tenant did not
Adm. Review Docket Number: BJ 130223-RO
respond to the petition.
The Commissioner is of the opinion that this petition should be
denied.
Section 2522.4(a) limits a rent increase for the installation of new
appliances to 1/40th of the cost. The total increase computed by
the former owner far exceeds the allowable increase. Although the
tenant agreed to pay the incorrectly computed rent, Code Section
2520.13 voids, except in limited circumstances, a tenant's waiver of
a benefit under the Code, including the benefit of paying only a
lawful rent. Accordingly, the Commissioner finds that the
Administrator correctly determined that an overcharge had occurred.
With respect to the owner's claim that its purchase of the building
at a foreclosure sale made necessary records unavailable, the
Commissioner notes that the owner had in its possession and
submitted copies of the very documents which disclosed the
overcharge.
Pursuant to Code Section 2526.1(a)(1), when an owner is found to
have overcharged, there is a rebuttable presumption that the
overcharge was willful. Only if the owner establishes by a
preponderance of the evidence that the overcharge was not willful
can it avoid treble damages. The owner has misread the law to place
the burden of proof on the tenant. The Commissioner finds that the
owner did not submit evidence to show lack of willfulness.
Accordingly, the Commissioner finds that the Administrator properly
assessed treble damages.
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, this order may be filed and enforced as judgment, or the
tenant may offset against any rent thereafter due the owner not in
excess of twenty percent per month of the remaining overcharge.
THEREFORE, in accordance with the Rent Stabilization Law and Code,
it is
ORDERED, that this petition be, and the same hereby is, denied, and
the Rent Administrator's order be, and the same hereby is, affirmed.
ISSUED:
ELLIOT SANDER
Deputy Commissioner
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