BH 410080 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

          ------------------------------------X 
          IN THE MATTER OF THE ADMINISTRATIVE :  ADMINISTRATIVE REVIEW
          APPEAL OF                              DOCKET NO. BH 410080 RO
                                              :  DRO DOCKET NO.L-3114609 R
               NICHOLAS MATIRE                   TENANT; LISA MONHEIT

                                PETITIONER    : 
          ------------------------------------X                             
          ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW IN PART


               On August 4, 1987, the above-named petitioner-owner filed a 
          Petition for Administrative Review against an order issued on June 
          30, 1987, by the Rent Administrator, 10 Columbus Circle, New York, 
          New York, concerning the housing accommodations known as 325 West 
          100th Street, New York, New York, Apartment No. 1A, wherein the Rent 
          Administrator determined that the owner had overcharged the 
          tenant.

          The Commissioner notes that this proceeding was filed 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 Administrative Appeal is being determined pursuant to the 
          provisions of Section 42A of the former Rent Stabilization Code 
          and Sections 2526.1 and 2527.8 of the current Rent Stabilization 
          Code.

          The issue herein is whether the Rent Administrator's order 
          was warranted.

          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 by the filing in 
          March 1984 of a rent overcharge complaint by the tenant who first 
          moved to the two room subject apartment on July 1, 1978 at a 
          rental of $250.00 per month.

          The owner was served with a copy of the complaint and was 
          directed to submit a complete rental history for the subject 











          BH 410080 RO
          apartment from the base date including copies of all leases.  The 
          owner was also informed that treble damages could be imposed on 
          rent overcharges collected on or after April 1, 1984.  In a 
          response dated October 20, 1984, the owner stated that prior 
          tenant Reggie Holloway had possession of the subject apartment on 
          July 1, 1974 at a rental of $215.00 per month and that Mr. 
          Holloway's rent was then increased to $230.00 per month effective 
          July 1, 1976.  In support of such contention, the owner submitted 
          copies of three rent receipts from Mr. Holloway for the subject 
          apartment.  Such rent receipts were dated April 12, 1974, January 
          26, 1976, and April 12, 1978 and listed monthly rents of $200.00, 
          $215.00, and $230.00 respectively.  In addition, the owner 
          submitted a copy of the complaining tenant's initial rent deposit 
          form dated June 12, 1978.  On such form, the complaining tenant 
          listed Reggie Holloway as a reference and listed Mr. Holloway's 
          address as the subject premises.  On March 25, 1986 and September 
          26, 1986, the owner was afforded additional opportunities to 
          submit a complete rental history including copies of leases and / 
          or rent ledgers for the period of Mr. Holloway's tenancy.  No 
          further documentary evidence was submitted by the owner.

          In Order Number CDR 27,253 issued on November 20, 1986, the 
          Rent Administrator determined that due to the owner's failure to 
          submit a complete rental history, the owner had collected a rent 
          overcharge of $2410.78 through June 30, 1984, determined the 
          lawful stabilization rent was $224.21 effective July 1, 1978 and 
          directed the owner to refund the overcharge to the tenant.  Treble 
          damages were assessed on the overcharges occurring on and after 
          April 1, 1984.

          On January 5, 1987, the tenant requested that the November 
          20, 1986 Rent Administrator's order be amended to update the 
          rental history and include overcharges occurring after June 30, 
          1984.

          On April 30, 1987, the Rent Administrator issued a Notice of 
          Proceeding to Modify, Revoke or Affirm Order in which the parties 
          were advised that the Rent Administrator was reopening the 
          proceeding to issue an amended order to include the lease 
          effective July 1, 1984 to June 30, 1986 and affording the parties 
          an opportunity to comment.

          On May 6, 1987, in response to the April 30, 1987 Notice, the 
          owner stated in substance that the order should not be modified on 
          the basis that the tenant has presented no new evidence, that in 
          fact there was no overcharge and in any event, any overcharge was 
          not willful.

          On June 30, 1987, the Rent Administrator issued an Amended 
          Order Number CDR 27,253 to take into account rent overcharges 
          through June 30, 1987.  In such amended order, it was specifically 
          stated that the rent receipts submitted by the owner were not 




          sufficient to establish the base rent of the subject 
          apartment.  Total overcharges through June 30, 1987 were 
          determined to be $6510.24 including treble damages on all 


          BH 410080 RO
          overcharges occurring on and after April 1, 1984.

          In this petition, the owner alleges in substance that 
          although the owner does not have every rent record for apartment 
          1A, the owner in good faith believed that the rent charged to the 
          tenant herein was correct, that the imposition of treble damages 
          was not warranted, that subsequent to the issuance of the Rent 
          Administrator's original order, the owner attempted to refund 
          rent overcharges to the tenant, and that the tenant did not 
          request modification of the original order until after the time 
          the tenant could have filed a Petition for Administrative Review  
          had expired so that such request should have been denied.  In 
          support of such contentions, the owner submitted a copy of a 
          letter dated May 4, 1987 sent to the tenant by the owner's 
          attorney.  In such letter, it was stated that the owner would 
          refund to the tenant the amount of the overcharge determined in 
          the Rent Administrator's original order - $2410.78 plus 
          overcharges occurring from July 1, 1984 to November 30, 1986 but 
          without treble damages or interest.

          In answer to the owner's petition, the tenant stated in 
          substance that the Rent Administrator's order was warranted in 
          that the overcharge was clearly willful, that no settlement was 
          ever reached, that the tenant should be awarded attorney's fees, 
          and that the owner waived his right to file an administrative 
          appeal because he did not file a timely appeal against the 
          original order finding a rent overcharge.  Along with her answer, 
          the tenant submitted a copy of a letter she sent to the owner 
          dated January 5, 1987 in which she stated that as a result of the 
          Rent Administrator's original order, she was entitled to receive 
          from the owner the overcharge determined in such original order - 
          $2410.78 plus overcharges occurring from July 1, 1984 to December 
          31, 1986 including treble damages on the overcharges from July 1, 
          1984 to December 31, 1986.

          The Commissioner is of the opinion that this petition should 
          be granted in part.

          Section 42A of the former Rent Stabilization Code requires 
          that an owner retain complete records for each stabilized 
          apartment in effect from June 30, 1974 to date and produce them to 
          the DHCR upon demand.  If the apartment was decontrolled from the 
          Rent Control Law after June 30, 1974, the owner must provide 
          satisfactory documentary evidence of the apartment's date of 
          decontrol.

          In the instant case, an examination of the records including 
          the copies of the rent receipts and the complaining tenant's 
          deposit form discloses that the owner in fact submitted a complete 




          rental history for the subject apartment from the base date as 
          mandated by Section 42A.

          The Commissioner has recalculated the lawful stabilization 
          rents and the amount of the rent overcharge for the subject 
          apartment on the basis of the rental history submitted by the 







          BH 410080 RO
          owner.  The lawful stabilization rents and the amount of the rent 
          overcharge are set forth on the amended rent calculation chart 
          attached hereto and made a part hereof.

          With regard to the imposition of treble damages, Section 
          2526.1 of the current Rent Stabilization Code provides in 
          pertinent part that any owner who is found by the DHCR to have 
          collected any rent or other consideration in excess of the legal 
          regulated rent shall be ordered to pay to the tenant a penalty 
          equal to three times the amount of such excess except that if the 
          owner establishes by a preponderance of the evidence that the 
          overcharge was not willful, the DHCR shall establish the penalty 
          as the amount of the overcharge plus interest from the date of the 
          first overcharge on or after April 1, 1984.

          In the instant case, the owner has not submitted any evidence 
          to establish that the overcharge was not willful.  In this 
          connection, it is noted that even after the issuance of the 
          original Rent Administrator's order on November 20, 1986, the 
          owner did not take immediate steps to reduce the tenant's rent in 
          accordance with such order or to refund the overcharge.  It was 
          only after the proceeding was reopened that the owner 
          unsuccessfully tried to settle the matter with the tenant.  
          Accordingly, the imposition of treble damages was warranted.

          With regard to the owner's contention that the proceeding 
          should not have been reopened and an amended order issued, it is 
          noted that Section 2527.8 of the current Rent Stabilization Code 
          provides in pertinent part that the DHCR, on application of 
          either party, or on its own initiative, and upon notice to all 
          parties affected, may issue a superseding order modifying or 
          revoking any order issued by it under this or any previous Code 
          where the DHCR finds that such order was the result of 
          illegality, irregularity in vital matters, or fraud.  There is no 
          time limit imposed for the issuance of such superceding order.  In 
          this case, the failure of the original order to include an 
          overcharge up to the issuance date of said order represents an 
          irregularity in a vital matter and the promulgation of an amended 
          order was therefore warranted.

          With regard to the tenant's contention that attorney's fees 
          should be awarded, it is noted that the tenant did not file a 
          petition of her own regarding this issue as would be required for 
          a determination on the merits but merely raised it as part of her 
          answer to the owner's petition.  Accordingly,  no award of 
          attorney's fees can be made in this proceeding.




          With regard to the tenant's contention that the owner waived 
          his right to file an administrative appeal against the amended 
          order herein because he did not file an appeal against the 
          original overcharge order, the Commissioner is of the opinion that 
          the issuance of the amended order was not merely an order 
          correcting a minor mistake, but was an order on the merits and 
          that the owner was entitled to file an appeal against such amended 
          order.



          BH 410080 RO
          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 the Rent 
          Administrator's order plus any lawful increases, and to register 
          any adjusted rents with this order and opinion being given as the 
          explanation for the adjustment.

          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, not in excess of twenty percent per month 
          thereof may be offset against any rent thereafter due the owner.

          If the owner has already complied with the Rent 
          Administrator's order and there are arrears due to the owner as a 
          result of the instant determination, the tenant is permitted to 
          pay off the arrears in twenty four equal monthly installments.  
          Should the tenant vacate after the issuance of this order or have 
          already vacated, said arrears shall be payable immediately.

          THEREFORE, in accordance with the provisions of the Rent 
          Stabilization Law and Code, it is

          ORDERED, that this petition for administrative review be, and 
          the same hereby is, granted in part, and, that the order of the 
          Rent Administrator be, and the same hereby is, modified in 
          accordance with this order and opinion.  The lawful stabilization 
          rents and the amount of the rent overcharge are established on the 
          attached chart which is fully made a part of this order.  The 
          amount of the rent overcharge including treble damages through 
          June 30, 1987, is $127.76.

          ISSUED



                                                                        
                                          JOSEPH A. D'AGOSTA
                                          Deputy Commissioner





                     






















          BH 410080 RO
















    

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