BC 810155-RT
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.
BC-810155-RT
DOROTHY COOKE, DISTRICT RENT ADMINISTRATOR'S
DOCKET NO.
PETITIONER WPC 85-S-2 -R
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ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
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
owner.
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.
ISSUED:
ELLIOT SANDER
Deputy Commissioner
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