BC 810155-RT
                        STATE OF NEW YORK
                           GERTZ PLAZA
                     92-31 UNION HALL STREET
                     JAMAICA, NEW YORK 11433
APPEAL OF                               DOCKET NO.
                        PETITIONER      WPC 85-S-2 -R

On March 23, 1987, the above-named subtenant filed a petition for
administrative review of an order issued on March 4,  1987  by  a
District  Rent  Administrator concerning  housing  accommodations
known  as  Apartment 4, 77 Perry Avenue, Port Chester, New  York,
wherein  the Rent Administrator determined that a rent overcharge
had occurred.

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 petition for review.

This  proceeding  was commenced on November  8,  1985,  upon  the
filing  of a general overcharge complaint by the subtenant.   The
subtenant stated that she took occupancy of the subject apartment
on February 15, 1985, at a monthly rental of $600.00.

In  its  answer the owner alleged that he entered into a two-year
lease  with a prime tenant from October 1, 1984 to September  30,
1986, at a rental of $350.00 per month.

Subsequently, the subtenant filed a harassment complaint under
Docket No. 15, 951 HL.  Based on the evidence compiled in the two
proceedings before the DHCR, the Administrator found, among other
things, that the prime tenant is married to the son of the owner,
that another tenant in the subject building also paid rent to
same prime tenant, and that there was no evidence that the prime
tenant ever occupied the subject apartment.

Accordingly,  the Administrator concluded that the  prime  tenant
was  an  illusory tenant, and the subtenant was deemed to be  the
tenant of record with all rights therein, including the right  to
a  renewal  lease.  The lawful stabilization rent was established
at $350.00 per month beginning February 15, 1985 through February
28, 1986.

In  her  petition  for administrative review the tenant  contends
that the Administrator should have assessed treble damages.

In  the owner's answer to the petition for review it alleges that
the  Administrator  correctly did not assess treble  damages  be-
cause the record contained no evidence of willfulness.  The owner
further  alleges  that  the  subtenant  committed  several  lease
viola-tions  during  the  period of her  tenancy,  including  the
unilateral  withholding of rent before the Administrator's  order
was  issued.  Also, the owner alleges that the prime tenant  made
extensive  im-provements in the subject apartment,  intending  to
occupy it, and therefore, no overcharges occurred.  Finally,  the
owner  urges  a  reexamination of the findings  of  fact  by  the
Administrator in this appeal.

After  careful consideration, the Commissioner is of the  opinion
that this petition should be granted.

First,  Section 2506.1(a)(1) of the Tenant Protection Regulations
states  that  treble damages shall be ordered in all cases  where
the  landlord  collected rent in excess of  the  legal  regulated
rent.   An exception is "... (i)f the landlord establishes  by  a
preponderance  of  the evidence that the overcharge  was  neither
willful nor attributable to his negligence..."  In this case, the
Administrator  determined  that an  illusory  prime  tenancy  was
created.  The record contains no evidence demonstrating a lack of
wilfulness.   Therefore, the Commissioner is of the opinion  that
the  owner  has  failed to sustain its burden of proof,  and  the
Administrator erred in his failure to assess treble damages.

Second,  the  allegation by the owner that the prime tenant  made
improvements  to  the  premises  and  therefore  no   overcharges
occurred  will  not  be reconsidered by the Commissioner  in  the
absence  of  a  petition for administrative review filed  by  the

Similarly,  in  the  absence  of a petition  by  the  owner,  the
Commis-sioner will not reconsider the determination of the  facts
made by the Administrator.

The record indicates that the tenant, beginning December 1, 1985,
ceased paying rent in an effort to recover overcharges.  The rent
withheld by the tenant recouped the entire amount of the actual
overcharges.  The Commissioner is of the opinion that the over-
charges  actually paid by the tenant ($250.00 per month) for  the
period  of February 15, 1985 to November 30, 1985 (9 1/2  months)
should  be trebled.  However, the tenant is entitled only to  the
penalty portion of the overcharge (two times the principal  over-
charge  amount  of $2,375) because she has already recovered  the
principal portion.

THEREFORE,  pursuant to the Emergency Tenant Protection  Act  and
the Tenant Protection Regulation, it is

ORDERED,  that this petition be, and the same hereby is, granted,
and  that  the Administrator's order be, and the same hereby  is,
modified in accordance with this order and opinion; and it is

FURTHER ORDERED, that this order may, upon the expiration  of  the
period  in which the owner may institute a proceeding pursuant  to
Article  Seventy-Eight of the Civil Practice  Law  and  Rules,  be
filed  and enforced by the tenant in the same manner as a judgment
against the owner, Park Manor Estates, in the amount of $4,750.00.

NOTE:     As  determined by the Administrator, the lawful stabil-
          ization  rent  of $350.00 per month as of February  28,
          1986 is the amount that the owner should have used as a
          basis for subsequent rent calculations.  The owner
          is advised that a copy of this order is being sent to
          the current tenant.  If he has not done so, the owner
          is directed to appropriately register all rents with
          this agency.

                                         Deputy Commissioner

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