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

     ------------------------------------X 
     IN THE MATTER OF THE ADMINISTRATIVE :  ADMINISTRATIVE REVIEW
     APPEAL OF                              DOCKET NO.: BA 210024-RO
                                         :  
                                            RENT ADMINISTRATOR'S DOCKET
      D.S.J. MANAGEMENT CORPORATION         NO.: K 3104146-R
                           PETITIONER    : 
     ------------------------------------X  TENANT: ISAAC KAMINSKY     

       ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW IN PART
                     AND MODIFYING RENT ADMINISTRATOR'S ORDER

     The  above  named   petitioner-owner   filed   a   timely   Petition   for
     Administrative Review against an order of the  Rent  Administrator  issued
     September 25, 1986.  The order concerned housing accommodations  known  as
     Apartment 3E located at 3115 Brighton 6th Street, Brooklyn, New York.  The 
     Administrator determined that the tenant had been overcharged and computed 
     the overcharge at $4205.64.

     The Commissioner has reviewed the record  and  carefully  considered  that
     portion relevant to the issues raised by that appeal.

     The Commissioner notes that this proceeding was initiated prior  to  April
     1, 1984.  Sections 2526.1(a)(4) and 2521.1(d)  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 tenant commenced this proceeding on March 23, 1984 by  filing  a  rent
     overcharge complaint, in which he indicated that he moved into the subject 
     apartment on September 15, 1977 pursuant to a two year lease at  a  rental
     of $200.00 per month.  The tenant said the owner had refused to  show  him
     prior leases and that he believed that the initial  legal  regulated  rent
     exceeded the fair market rent.

     A copy of the complaint was sent on October 9, 1980 to the owner named  by
     the tenant on the complaint along with  answer  forms  and  a  demand  for
     complete copies of all leases for the period from the  base  date  to  the
     date on which the tenant took occupancy. The mailing was returned to  DHCR
     by the post office with the notation "attempted-not known".   On  February
     24, 1986, the owner was sent at the same address a Final Notice of Pending 
     Default, advising the owner how  the  rent  would  be  determined  in  the
     absence of a rent history and explaining  that  treble  damages  would  be
     imposed if the owner did not  establish  that  the  overcharges  were  not
     willful.

     When no response was received, the lawful stabilized rent was  established
     by using default procedures developed pursuant to Section 42A of the 







          DOCKET NUMBER: BA 210024-RO
     former Rent Stabilization Code.  The owner was directed to refund $4205.64 
     in overcharges including treble damages on  overcharges  collected  on  or
     after April 1, 1984.

     Petitioner filed a petition for administrative review.  That petition  was
     dismissed by the Commissioner on  February  27,  1987.   The  Commissioner
     noted that  the  petitioner  had  failed  to  timely  file  the  petition.
     Petitioner requested reconsideration of the Commissioner's order.  Finding 
     that a change of ownership took place and that petitioner, the new  owner,
     was  not  properly  notified  of  the  Rent  Administrator's   order   the
     Commissioner granted reconsideration of  this  dismissal.   The  case  was
     reopened for decision on the merits.

     In the petition, the owner argues that the  Administrator's  finding  that
     the owner was in default violates due process because the owner was  never
     served with the complaint and had no knowledge of  the  proceedings  until
     the tenant sent the owner a copy of the order.   The  owner  also  asserts
     that the finding of an overcharge is  erroneous  because  the  complaining
     tenant was the first stabilized tenant and his initial rent of $200.00 did 
     not exceed the fair market rent.  Finally, the owner  argues  that  treble
     damages should not have been imposed because the owner has always  charged
     the proper and lawful rent.  The owner includes its  own  version  of  the
     lawful rents and actual rents  charged  since  the  commencement  of  this
     tenant's occupancy.

     After careful consideration of the evidence of record, the Commissioner is 
     of the opinion that the petition should be granted in part.

     As noted in the reopening order,  the  Administrator  did  not  serve  the
     correct owner with the complaint or the Final Notice  of  Pending  Default
     despite notice to the agency of the change in ownership.  Because of  this
     error, the owner's answer to the complaint as contained  in  the  petition
     will be considered for the first time on appeal.

     The Division's records confirm the tenant's statement in the complaint and 
     the owner's statement in the petition that the complaining tenant was  the
     first stabilized tenant after the apartment became decontrolled  in  1977.
     Converting the tenant's complaint to a fair market rent appeal results  in
     a determination that the initial rent of $200.00 does not exceed the  fair
     market rent as determined by adjusting  the  1976  Maximum  Base  Rent  of
     $178.05 by the 20% special guideline stated in Rent Guidelines Order No. 9

     A review of the subsequent increases reveals that  the  tenant  was  still
     overcharged as shown on the rent calculation chart attached to and made  a
     part of this order.  The Commissioner notes that the  owner  indicated  in
     its submission that the  rent  charged  for  the  September  15,  1982  to
     September 14, 1985 lease term was $273.69 while the  tenant  said  in  his
     complaint that he paid $259.52.  Since the Division's records reveal  that
     the owner registered the rent in 1984 as $259.54 and this  is  similar  to
     the tenant's number this is the amount that is used  in  the  computations
     herein.

     Finally, Section 2526.1 of the Rent Stabilization Code provides for treble 
     damages unless the owner establishes by a preponderance  of  the  evidence
     that the overcharge was not willful.  Since the overcharges herein are the 







          DOCKET NUMBER: BA 210024-RO
     result  of  the  incorrect  application  of  guidelines   increases,   the
     Commissioner finds that the owner has not established that the  overcharge
     was not willful.  Accordingly, treble damages are warranted.  The revised
     overcharge is computed at $799.19.

     If the owner had already complied with the Administrator's order and there 
     are arrears due the owner as a result of this order, the  tenant  may  pay
     off such arrears in twelve monthly installments.  If the tenant vacates or 
     has already vacated the arrears are payable immediately.

     This order may be enforced as a judgment after the time to file an Article 
     78 has expired or the tenant may deduct from future rent payments up to 20 
     percent of the total overcharge until the total amount is deducted.

     The owner is directed to file amended registrations with this order as the 
     reason for the modification and  to  base  all  rents  subsequent  to  the
     October 1, 1985 to September 30, 1987 lease term on the amount  determined
     herein.

     THEREFORE, in accordance with the Rent Stabilization Law and Code 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 in accordance 
     with this order and opinion.

     ISSUED:














                                                                   
                                     JOSEPH A. D'AGOSTA
                                     Deputy Commissioner




                                                   
    

TenantNet Home | TenantNet Forum | New York Tenant Information
DHCR Information | DHCR Decisions | Housing Court Decisions | New York Rent Laws
Disclaimer | Privacy Policy | Contact Us

Subscribe to our Mailing List!
Your Email      Full Name