Adm. Review Docket No.: BC710377RO
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.: BC710377RO
ARTHUR T. MOTT
DRO DOCKET NO.: G-B-B-7-1-0001-R
TENANT: BRENDA MULBERRY
PETITIONER
----------------------------------X
ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
IN PART
The above-named petitioner-landlord timely filed a Petition for
Administrative Review against an order issued on March 3, 1987, by
the Rent Administrator at 50 Clinton Street, Hempstead, New York,
concerning housing accommodations known as apartment number 437 at
31 Brewster Street, Glen Cove, New York, wherein the Administrator
found that the landlord had attempted to circumvent the prohibition
against collecting security in excess of one month's rent by
collecting one month's "advance rent" (representing the rent for
the last month of the term of the tenant's vacancy lease) in
addition to one month's security; and the Administrator directed
the landlord to refund $1,950.00, including treble damages, to the
tenant.
The Commissioner has reviewed all of the evidence in the record and
has carefully considered that portion of the evidence relevant to
the issues raised in the administrative appeal.
This proceeding was commenced on January 26, 1987, by the filing of
a Tenant's Statement of Complaint. The tenant alleged therein that
she had taken occupancy under a one year lease whose term commenced
July 1, 1986 and terminated June 30, 1987; and, that at the time
she entered into said lease, the landlord had charged and collected
one month's security, one month's rent for the first month of the
lease and one month's rent for the last month of the lease.
The landlord answered the complaint, in substance, admitting the
facts alleged therein and asserting that there was no prohibition
against his collecting advance rent.
In the appealed order, the Administrator found that the collection
of the advance rent herein constituted an attempt to circumvent the
Adm. Review Docket No.: BC710377RO
purpose and intent of the prohibition contained in 9NYCRR2505.4
against collecting security in excess of a sum equal to one month's
rent. The Administrator noted that the landlord had been found to
have so violated Section 2505.4 in an order issued in another
proceeding (Docket Number N-GC-86-S-R) on April 15, 1986.
In his Petition the landlord asserts, in substance, that he did not
know that the collection of advance rent was a circumvention of
Section 2505.4; that the tenant had voluntarily consented to pay
the advance rent; that the Attorney General and the landlord had
entered into a stipulation whereby the landlord had agreed to
refund all prepaid rent; that the tenant has been paid $650.00,
plus interest in accordance with said stipulation; and that the
order should be revoked, if not in whole, at least as to that
portion which imposed treble damages. Annexed to the Petition is
what appears to be a copy of the tenant's original lease
application; a letter from the landlord to the tenant dated March
27, 1987 wherein the landlord states that pursuant to an agreement
with the Attorney General, the landlord has enclosed a check "which
refunds to you a portion of your security deposit"; and the front
of a check dated March 18, 1987 (check #0005388) drawn on the
account of A.T. Mott and payable to "Mulberry, Brenda" in the
amount of $705.33.
In her answer opposing the Petition, the tenant asserts, in
substance, that the landlord's argument that his conduct should be
excused as the product of his ignorance is refuted by the fact that
the landlord employs attorneys on a full-time basis; that the
tenant did not "volunteer" to pay the advance rent_payment of the
advance rent was a precondition the landlord imposed before he
would rent the apartment to the tenant; the agreement with the
Attorney General should not excuse the landlord from paying the
penalty provided for in the appealed order as the payment of all
the money required up front by the landlord imposed an undue burden
on the tenant.
The Commissioner is of the opinion that this Petition should be
granted in part.
The Commissioner notes that it is well settled that security
payments are not rent payments. The Commissioner further notes that
treble damages may be imposed on rent overcharges, but not on the
collection of excess security. Therefore, the Commissioner finds
that the Administrator erred in imposing treble damages on the
landlord herein. Consequently, the Commissioner finds that the
issues raised herein and relating to the landlord's state of mind,
and its impact on the imposition of treble damages, are moot.
The Commissioner also finds that whether or not the tenant's
actions upon leasing the apartment could in any way be construed as
evidencing her consent to the collection of the excess security, a
tenant may not waive a benefit provided under the Tenant Protection
Regulations (9NYCRR2500.12) except under limited circumstances
which do not apply here.
Adm. Review Docket No.: BC710377RO
The Commissioner notes that the landlord has failed to provide a
copy of the alleged stipulation with the Attorney General. The
Commissioner further notes that in the absence of an allegation,
let alone proof, that the stipulation was binding on the tenant
and/or the Commissioner, the existence of any such stipulation is
of no consequence in this proceeding; especially since there no
longer is a viable treble damages issue herein.
As the Commissioner finds that the appealed order should be
modified to provide that the landlord be directed to refund the
excess security plus interest to the tenant, the landlord's
statement that he refunded said sum to the tenant after the
appealed order was issued provides no basis upon which to revoke
and/or further modify said order.
THEREFORE, pursuant to all of the applicable statutes and
regulations, it is
ORDERED, that this Petition be, and the same hereby is granted in
part and that the appealed order be, and the same hereby is,
modified in the manner and to the extent set forth herein; and that
as so modified said order be, and the same hereby is, affirmed.
ISSUED:
JOSEPH A. D'AGOSTA
Deputy Commissioner
1A2D3D2BC710377.RO
|