DOCKET NO.:  BD710200RO
                             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    :   SJR NO. 5768
     APPEAL OF                                  ADMINISTRATIVE REVIEW  
                                            :   DOCKET NO. BD710200RO
              ARTHUR T. MOTT,                   DRO DOCKET NO. NGC86S101R
                                            :   TENANT:  SUSHEELA AMBROSE
                             PETITIONER
     ---------------------------------------X     
                                               

      ORDER AND OPINION MODIFYING PRIOR ORDER OF THE COMMISSIONER UPON REMIT

     This Order is issued pursuant to an Order in an Article 78 Proceeding 
     before the Supreme Court, County of Nassau, Justice Colby, dated September 
     11, 1991, Index Number 11712/91, which remitted the proceeding to the 
     Division "for further proceedings and a new determination."  The Article 
     78 proceeding had been initiated by the owner, who requested that the 
     court modify the DHCR order by removing the treble damages imposed 
     therein.

     On April 6, 1987 the above named petitioner-landlord filed a Petition for 
     Administrative Review against an order issued on March 23, 1987 by the 
     Administrator, 50 Clinton Street, Hempstead, New York concerning the 
     housing accommodations known as Apartment 130 at 31 Brewster Street, Glen 
     Cove, New York.

     The issue to be decided on remit is whether the Commissioner's prior order 
     was correct in so far as it imposed treble damages against the petitioner.

     The applicable administrative regulation is Section 9 NYCRR 2510 of the 
     Tenant Protection Regulations.

     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 by the administrative appeal.

     On March 23, 1987 the District Rent Administrator issued order #NGC86S101R 
     finding that the landlord had overcharged the tenant in the total amount 
     of $2,111.55, the overcharge being based, in part on the disallowance of 
     a rent increase for a carpeting and for a second garage space not used by 
     the tenant.

     In its petition, dated April 6, 1987, the landlord contended that it had 
     complied with the requirements for recovering the costs of the carpeting 
     because, under former Section 34(1)(a) of the Tenant Protection 
     Regulations, it is considered a "furnishing", for which one fortieth of 
     the total cost may be added to the monthly rent.  The landlord also 
     claimed that the costs of the second garage space must be allowed since 
     this space was assigned "prior to the tenant's occupancy," adding that the 
     tenant was required to accept the two spaces even though she had only one 







          DOCKET NO.:  BD710200RO

     car because she could have sublet the second space.

     In the prior Commissioner's order, issued March 26, 1991, the Commissioner 
     modified the Administrator's order in two ways:


               (1)  the owner was granted a rent increase for 
                    carpeting, and

               (2)  noting that "the Tenant Protection 
                    Regulations (TPR) has no specific provision 
                    limiting the scope of appellate review," 
                    the Commissioner imposed treble damages 
                    based on "the blatancy of the owner's 
                    conduct in this case."


     The Commissioner is of the opinion that the Commissioner's prior order 
     should be modified to the extent of revoking the imposition of treble 
     damages therein.  In all other respects the March 26, 1991 order remains 
     in full force and effect.

     Had the tenant herein filed a timely petition alleging it had been an 
     error for the Administrator not to have imposed treble damages, the issue 
     would have been properly raised before the Commissioner and treble damages 
     could have been imposed on appeal if appropriate.

     On the other hand, in the absence of fraud or other special circumstance, 
     neither of which has been alleged in this proceeding, even if the tenant 
     had requested treble damages in answer to the landlord's petition, the 
     issue would not have been properly raised before the Commissioner.

     Accordingly, in this proceeding, where the issue of treble damages was not 
     raised on appeal by either party, the issue was not properly before the 
     Commissioner and the imposition of treble damages on appeal must be, and 
     hereby is, revoked - despite the finding in the blatancy of the owner's 
     conduct.

     Therefore, the total overcharge amount of $4,819.23 in the March 26, 1991 
     order is hereby reduced to $1,606.41.

     The landlord is hereby directed to immediately refund this amount to the 
     tenant.  If the landlord fails to do so, the tenant may recover the 
     penalty found herein by deducting it from the rent payable to the landlord 
     at a rate not in excess of 20 percent of the amount of the penalty for any 
     one month's rent. If no such offset has been made, this order may, upon 
     the expiration of the period in which the landlord may institute a 
     proceeding pursuant to Article 78 of the Civil Practice Law and Rules, be 
     filed and enforced by a tenant in the same manner as a judgment.

     THEREFORE, in accordance with the Emergency Tenant Protection Act and 
     Regulations, it is 





          DOCKET NO.:  BD710200RO


     ORDERED, that the March 26, 1991 order of the Commissioner in this 
     proceeding be, and the same hereby is, modified to the extent of revoking 
     the imposition of treble damages therein.  In all  other respects the 
     March 26, 1991 order remains in full force and effect.

     ISSUED:




                                                                              
                                                    JOSEPH A. D'AGOSTA
                                                    Deputy Commissioner     



    

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