Docket Number: BH-130122-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.: BH-130122-RT
YVONNE CHICOINE, DRO DOCKET NO.: Q-3119133-RT
ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW IN
PART AND MODIFYING DISTRICT RENT ADMINISTRATOR'S ORDER
On August 18, 1987, the above-named petitioner-tenant filed a
Petition for Administrative Review of an order issued on July 17,
1987, by the District Rent Administrator, 10 Columbus Circle, New
York, New York, concerning the housing accommodations known as
Apartment E-3 at 70-35 Broadway, Jackson Heights, New York, wherein
the District Rent Administrator determined that the tenant had been
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 on March 29, 1984 by the
filing of a fair market rent appeal and a overcharge complaint by
the tenant with the New York City Conciliation and Appeals Board,
one of the predecessor agencies to the DHCR. The tenant took
occupancy on November 17, 1980. The tenant's initial lease
commenced December 1, 1980 and expired November 30, 1982 at a
monthly rent of $365.00.
The owner and prior owner were served with a copy of the complaint
and were requested to submit rent records to prove the lawfulness of
the rent being charged. In answer, the current owner stated that it
took title to the subject building on March 21, 1985. The owner
submitted, among other things, a bill dated October 21, 1980 in the
amount of $1,336.73 for improvements to the subject apartment
installed by the prior owner prior to the tenant's occupancy
consisting of a refrigerator, metal wall cabinets, kitchen sink and
cabinets, stove and medicine cabinets. The owner also submitted a
letter from the prior owner indicating how the tenant's initial rent
was calculated which included, in addition to the amount of the
aforementioned bill, the amount of $730.69 for combination storm
Docket Number: BH-130122-RT
In Order Number CDR 30, 918, the District Rent Administrator
determined that the initial rent of the first stabilized tenant did
not exceed the fair market rent, determined that the complainant
tenant was overcharged in the amount of $1,143.37, including
interest on overcharges collected on or after April 1, 1984, and
directed a refund of that amount to the tenant. The Administrator
included in the complainant tenant's initial rent an allowance of
$51.69 for the improvements to the subject apartment.
In this petition, the tenant contends that the items of new
equipment claimed by the owner were not new when the tenant took
occupancy. The tenant also asserts that the principals of the owner
also own the supply company listed on the bill. The tenant also
states that the Administrator's overcharge calculations should be
updated, that treble damages should be imposed and that the
Administrator incorrectly determined the rent for the period from
November 17, 1980 to November 30, 1980 based on 23 days rather than
In answer, the current owner asserts that the only error in the
tenant's rent was an incorrect vacancy allowance which was corrected
by the Administrator.
By subsequent correspondence, the tenant advised that she had
vacated the apartment.
The Commissioner is of the opinion that this petition should be
granted in part.
Section 20c(1) of the Code provides that where there has been an
installation of new equipment in a stabilized apartment, the monthly
stabilization rent for said unit may be increased by 1/40th of the
cost of such new equipment provided the tenant then in occupancy has
consented thereto in writing. In addition, the courts have ruled
that an increase may be charged for new equipment installed during a
vacancy prior to the commencement of a new tenancy or upon the
commencement of a new tenancy and reflected in the rent. (Matter of
LeHavre Corp. v. Gribetz, et. al, N.Y.L.J., January 20, 1971, p.19,
col.8, (Sup. Ct. Queens Co., Crisona, J.); Matter of Morton I.
Hamberg v. Conciliation and Appeals Board, N.Y.L.J., November 8,
1987, p.18, col.8, Sup. Ct., N.Y. Co., Sarafite, J.)).
The record in this case indicates that the owner submitted a paid
bill for improvements to the subject apartment totaling $1,336.73
for items installed shortly before the tenant took occupancy while
the apartment was vacant. The tenant has submitted no evidence to
substantiate her assertions that the items in question were not new
when she took occupancy or that there was a connection between the
owner and the supply company. It is noted that the items in
question were installed in 1980 and that the tenant has since
vacated the apartment. The Commissioner therefore finds that the
Administrator properly allowed a increase for these items. However,
the owner failed to submits a bill to document the installation and
cost of combination storm windows. The Commissioner therefore finds
that no increase should be allowed for this item.
Docket Number: BH-130122-RT
Regarding the tenant's assertion that the Administrator's overcharge
calculations should be updated, the Commissioner finds that the
Administrator properly calculated the overcharge through the date of
the Administrator's order and therefore no updating is required.
Section 26-516 of the Rent Stabilization Law provides, in pertinent
part, that where an owner has been found by the DHCR to have
overcharged a tenant, treble damages shall be imposed unless the
owner establishes by a preponderance of the evidence that the
overcharge was not willful, in which case interest shall be imposed.
The Division has adopted the policy that where the complaint was
filed prior to April 1, 1984, but the DHCR subsequently notified the
owner that treble damages would be imposed for overcharges occurring
subsequent to April 1, 1984, the DHCR may impose treble damages.
Where the owner was never given such notice, damages will be
restricted to the amount of the overcharge plus interest.
The record in this case indicates that both the owner and prior
owner were notified by the Administrator that treble damages would
be imposed. Neither the owner nor the prior owner has established
lack of willfulness in the overcharge. Therefore the Commissioner
finds that treble damages should be imposed.
The Commissioner further finds that the Administrator improperly
calculated the tenant's lawful rent for the period from November 17,
1980 to November 30, 1980 by basing the rent for that period on 23
days rather than 13 days and by basing the rent on the prior
tenant's last monthly rent rather than the tenant's initial lease
The lawful stabilized rent is recalculated on the attached rental
history chart, which is fully made a part of this order.
Section 2526.1(f) of the current Rent Stabilization Code provides in
pertinent part that:
1) for overcharges collected prior to April 1, 1984,
an owner will be held responsible only for his or
her portion of the overcharges, in the absence of
collusion or any relationship between such owner
and any prior owner; and
2) for overcharges collected on or after April 1, 1984,
a current owner shall be responsible for all
overcharge penalties, including penalties based upon
overcharges collected by any prior owner.
The record in this case indicates that the current owner took title
to the subject building on March 21, 1985. Although the current
owner first acquired the subject premises on March 21, 1985, it is
jointly and severally responsible with the prior owner for the
overcharges ($1,334.04) occurring from April 1, 1984, to March 21,
1985, and the current owner is individually responsible for
overcharges ($2,856.48) occurring from March 21, 1985 to June 30,
Docket Number: BH-130122-RT
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.
Because this determination concerns lawful rents only through
June 30, 1987, the owner is cautioned to adjust subsequent rents to
an amount no greater than that determined by this order plus any
lawful increases, and to register any adjusted rents with this order
and opinion being given as the explanation for the adjustment. A
copy of this order and opinion is being sent to the current occupant
of the subject apartment.
THEREFORE, in accordance with the Rent Stabilization Law and Code,
ORDERED, that this petition be and the same hereby is granted in
part, and the District Rent Administrator's order be and the same
hereby is modified to show that: the prior owner is responsible for
refunding a total overcharge of $1,283.84- the amount of the
overcharge occurring from November 1, 1980 through March 31, 1984;
the prior owner and current owner are jointly and severally liable
for refunding $1,334.04- the amount of overcharge occurring from
April 1, 1984, to March 21, 1985; and the current owner is
responsible for refunding $2,856.48- the amount of overcharge
occurring from March 21, 1985, through June 30, 1987.