BH110272RO

                                  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. BH110272RO
                                              :  DRO DOCKET NO.50338
               JACOB WERBER                      TENANT: IRENE BARNETT

                                PETITIONER    : 
          ------------------------------------X                             
             ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW


               On August 3, 1987, the above-named petitioner-owner filed a 
          Petition for Administrative Review against an order issued on June 
          29, 1987, by the Rent Administrator, 10 Columbus Circle, New 
          York,New York, concerning the housing accommodations known as 41-24 
          50th Street, Queens, New York, Apartment No. 4A, wherein the Rent 
          Administrator determined that the owner had overcharged the tenant.

               The Administrative Appeal is being determined pursuant to the 
          provisions of Sections 2522.4 and 2526.1 of the 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 commenced in September, 1984 by the 
          tenant's filing of a Tenant's Objection to Rent/Services 
          Registration in which the tenant stated that she was being 
          overcharged.

               In answer to the tenant's objection, the owner submitted a 
          complete rental history from April 1, 1980 as required in which he 
          claimed improvements totalling $2802.30 to the subject apartment 
          immediately prior to occupancy by the tenant herein.  Copies of 
          invoices for the claimed improvements were submitted.

               In docket number 50338, the Rent Administrator gave a rent 
          increase of $31.44 (1/40th of improvements totalling $1,257.51) and 
          disallowed the remainder of the amount claimed for improvements on 
          the basis that the remainder consisted of ordinary repairs and 
          maintenance.  The Rent Administrator further determined that a total 
          overcharge of $851.76 had occurred from August 1, 1983 through July 
          31, 1984, including treble damages on that portion of the overcharge 
          occurring on and after April 1, 1984.

               In this petition, the owner alleges in substance that the 









          BH110272RO



          entire amount claimed for improvements should have been granted; 
          that there was no explanation as to which items were excluded and 
          why; and that in any event, the imposition of treble damages was not 
          warranted since any overcharge was not willful.

               The Commissioner is of the opinion that this petition should be 
          denied.

               Section 2522.4 of the Rent Stabilization Code provides in 
          pertinent part that an owner is entitled to a rent increase where 
          there has been a substantial increase of dwelling space or an 
          increase in the services, or installation of new equipment or 
          improvements, or new furniture or furnishings, provided in or to the 
          tenant's housing accommodation, on written tenant consent.  In the 
          case of vacant housing accommodations, tenant consent shall not be 
          required.

               Section 2526.1 of the Rent Stabilization Code provides in 
          pertinent part that any owner who is found by the DHCR to have 
          collected a rent or other consideration in excess of the legal 
          regulated rent on and after April 1, 1984 shall be ordered to pay to 
          the tenant a penalty equal to three times the amount of such excess.  
          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, contrary to the owner's contention on 
          appeal, the Rent Administrator's order clearly listed all the 
          invoices for which a rent increase due to improvements was not 
          allowed and gave the reason for the disallowance as being that said 
          alleged improvements were considered ordinary repairs and 
          maintenance.  The Commissioner has examined the disallowed items on 
          appeal and agrees with the Rent Administrator's determination that 
          they consisted of ordinary repairs and maintenance.  These items 
          basically consisted of the following: removal of wall paper; 
          painting, scraping and plastering; kitchen and floor repairs; 
          repairs of ceiling; repair of bathroom toilet; and repair of bathtub 
          and shower body.  Accordingly, no rent increase was allowable for 
          such items.

               Further, the owner has not demonstrated that the overcharge was 
          not willful.  Charging a rent increase for items that clearly 
          constitute ordinary repairs and maintenance as is the case herein is 
          considered willful and therefore the imposition of treble damages 
          was warranted. (Accord GB110365RO).

               The owner is directed to reflect the findings and 
          determinations made in this order on all future registration 
          statements, including those for the current year if not already 
          filed, citing this order as the basis for the change.  Registration 
          statements already on file, however, should not be amended to 






          BH110272RO

          reflect the findings and determinations made in this order.  The 
          owner is further directed to adjust subsequent rents to an amount no 
          greater than that determined by this order plus any lawful 
          increases.

               This order may, 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, be filed and enforced in the same manner as 
          a judgment or not in excess of twenty percent per month thereof may 
          be offset against any rent thereafter due the owner.

               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, denied, and, that the order of the Rent 
          Administrator be, and the same hereby is, affirmed.

          ISSUED



                                                                        
                                          JOSEPH A. D'AGOSTA
                                          Deputy Commissioner





                     


































          BH110272RO





    

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