DOCKET NO.: BD710200RO
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 : SJR NO. 5768
APPEAL OF ADMINISTRATIVE REVIEW
: DOCKET NO. BD710200RO
ARTHUR T. MOTT, DRO DOCKET NO. NGC86S101R
: TENANT: SUSHEELA AMBROSE
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
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
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
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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
(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
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
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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.
JOSEPH A. D'AGOSTA