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
|
