Docket No. BI 710021-RO
                                    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. BI 710021-RO

                                                  DISTRICT RENT
                                                  ADMINISTRATOR'S DOCKET
          Arthur T. Mott                          NO. F-B-C-7-1-0019-R
                                                  Tenant: Arthur Banks 
                                   PETITIONER
          ------------------------------------X


            ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW


              On September 3, 1987 the above-named owner filed a petition for 
          administrative review of an order issued on August 17, 1987 by a 
          Rent Administrator concerning the housing accommodation known as 
          Apartment 2-C, 40 Graffing Place, Freeport, New York.

              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.

              This proceeding was commenced by the filing of an overcharge 
          complaint by the tenant, dated March 16, 1987, alleging that he was 
          being charged a late fee of $20.00 per month, $3.85 for a smoke 
          detector, and that a copy of the apartment registration was put "in 
          the mailbox" on March 17, 1987.

              To his complaint the tenant attached, among other things, rent 
          bills from November 1986, February 1987 and March 1987.  The 
          February and March rent bill both stated that the monthly rent owed 
          is $363.92 and that the tenant owed $23.85 from a previous balance.  
          The tenant also attached a copy of the 1986 apartment registration 
          which stated that the April 1, 1986 registered rent is $363.92.

              The tenant took occupancy pursuant to a three-year lease 
          commencing on September 1, 1973 and expiring on August 31, 1976 at 
          a monthly rent of $270.00.

              On April 1, 1987, the Administrator mailed to the subject owner 
          a copy of the tenant's complaint.  The Administrator also mailed a 
          notice requesting that the subject owner submit an answer to the 
          tenant's complaint within twenty days of the above-mentioned date, 
          and directing the owner to submit to the rent agency a copy of the 












          Docket No. BI 710021-RO

          present tenant's lease and a copy of the lease immediately prior to 
          the present lease.

              The owner's answer, dated April 23, 1987, alleged that 
          paragraph 27 of the tenant's initial lease stated that "In the 
          event the rent is not received within five (5) days from the rent 
          due date a penalty will be charged as additional rent.  Tenant was 
          charged a late charge of $20.00 for February, 1987 and received a 
          credit in March."

              The tenant's response to the owner's answer asserted that he 
          was assessed a late charge of $20.00 for January 1, 1987, and June 
          1, 1987, and that the subject owner did not give him a credit for 
          any late charges that were paid by the tenant, but did credit the 
          tenant $3.85 for the smoke detector.

              On July 17, 1987, the Administrator mailed a notice to the 
          subject owner directing him to submit to the rent agency a copy of 
          the tenant's initial lease, including the aforementioned paragraph 
          27.

              On July 21, 1987, the subject landlord only submitted the last 
          page of the tenant's alleged initial lease.  The last page 
          contained the aforementioned paragraph 27 which stated that:

               In the event that the rent is not received within five 
               (5) days from the due date, a penalty of $5.00 will be 
               charged as additional rent.

              In the order reviewed herein, the Administrator determined that 
          the owner did not file the 1986 apartment registration form until 
          March, 1987, and therefore the Administrator barred the owner from 
          applying for or collecting any rent in excess of the legal 
          regulated rent in effect on the date of the preceding registration 
          statement.  The Administrator found that as a result of the late 
          filing of the 1986 registration statement, the owner collected 
          $266.52 in excess rent from April 1, 1986 to March 31, 1987. (The 
          10/1/85 monthly rent of $363.92 - 4/1/85 monthly rent of $341.71 X 
          12 months = $266.52.)  The Administrator further determined that 
          the collection of $20.00 for late fees is in excess of the $5.00 
          that is stated on the tenant's lease, and therefore the 
          Administrator directed the owner to refund $30.00 to the tenant, 
          for excess late fees that were collected by him in January and June 
          of 1987.  The total amount the owner was directed to refund to the 
          tenant was $296.52 ($266.52 + $30.00).

              In his petition the owner asserts that the Administrator's 
          order directing a refund to the tenant should be revoked as the 
          tenant's complaint "specifically addressed late charges," and that 
          the Administrator "had no authority to include issues extraneous to 
          the complaint without providing an opportunity for the owner to 
          rebut."  The owner further asserts that it was improper for the 






          Docket No. BI 710021-RO

          Administrator to have rolled back the rent to the September 30, 
          1985 level; that the 1986 registration forms were to be filed by 
          October 15, 1986; that the owner was granted an extension to file 
          the 1986 registration form by the rent agency through March 26, 
          1987; that if "excess rent were collected" it should have been 
          computed from November 1, 1986 through March 31, 1987; that the 
          late penalty of $5.00 per month contained in the 1976-1977 lease 
          "should receive guideline increments so that an equity balance 
          between rent payments and late penalties be maintained"; that the 
          subject tenant did not substantiate late payments of $30.00, and 
          that the owner had asserted in the proceeding before the 
          Administrator that the tenant was reimbursed for late payment fees.

              To his petition the subject owner attaches a form from the rent 
          agency which states "you are hereby granted a period of twenty (20) 
          days from the date above within which to submit completed 1986 
          Registration Forms...."  The form does not state the owner's name 
          or address, nor does it state the address of the subject premises.  
          Furthermore, the form is not dated, and is not signed.  
          Superimposed on the lower left-hand portion of the form is an 
          alleged receipt by the rent agency of a "Maintenance and Operations 
          Cost Survey Schedule" for a building that is separate and unrelated 
          to this proceeding.

              The tenant's answer to the petition asserts that he never 
          received a copy of the owner's petition, and that the owner 
          credited the subject tenant $266.52 toward his rent.

              On August 17, 1992, the rent agency mailed to the subject 
          tenant a copy of the owner's petition, and a notice informing the 
          tenant that he has twenty days from the above-mentioned date to 
          submit a response to the owner's petition.

              The tenant did not submit a response.  

              After careful consideration, the Commissioner is of the opinion 
          that the owner's petition should be denied.

              The Commissioner notes that the instructions promulgated by the 
          rent agency pertaining to the filing of the annual apartment 
          registration for 1986 provides that the aforementioned registration 
          must be filed with the rent agency no later than October 15, 1986.

              The Commissioner further notes that the rent agency's record 
          reflects that the subject apartment's 1986 registration statement 
          was filed with the rent agency on June 2, 1987, and that the 
          subject tenant's complaint asserted that the 1986 registration 
          statement was put in the mailbox by the owner on March 17, 1987.

              The rent agency's record further reflects that the initial 
          registered rent for the subject apartment was $341.71 per month, 
          and that the subject owner did not file a 1985 apartment 












          Docket No. BI 710021-RO

          registration for the subject apartment.

              Section 2509.3 of the State Tenant Protection Regulations 
          (STPR) state that:

              The failure to file a proper and timely initial or annual rent 
          registration statement as required by this part shall, until such 
          time as such registration statement is filed bar an owner from 
          applying for or collecting any rent in excess of the legal 
          regulated rent in effect on the date of the last preceding 
          registration statement or, if no such statements have been filed, 
          the legal regulated rent in effect on the date that the housing 
          accommodation became subject to the registration requirements of 
          the part.  The filing of a late registration shall result in the 
          prospective elimination of such sanctions.

              The Commissioner finds that the subject owner did not timely 
          file the subject apartment's 1986 apartment registration.

              Accordingly, the Commissioner finds that the Adminstrator's 
          order which established the legal regulated rent from April 1, 1986 
          through March 31, 1987 at the rent in effect on the date that 
          housing accommodation became subject to the registration 
          requirements of the STPR, which was $341.71 per month, should not 
          be disturbed.

              The Commissioner finds that the owner had notice of the issue 
          of the late filing of the registration statement as the tenant's 
          complaint pointed out that the registration statement was put in 
          the mailbox on March 17, 1987.

              Even if the subject owner did not have notice of the issue of 
          the late filing of the apartment registration, the Commissioner 
          notes that the Administrator's finding of on overcharge would still 
          have been warranted, as the owner is barred from collecting rent in 
          excess of the legal regulated rent in effect on the date of the 
          last preceding registration statement for not timely filing the 
          1986 apartment registration statement, pursuant to Section 2509.3 
          of the STPR.

              The Commissioner finds that the exhibit that the owner attaches 
          to his petition has no probative value, as it is not dated, is not 
          signed by anyone from the rent agency, does not state the address 
          of the subject premises, does not state the owner's name and 
          address, and has a receipt issued by the rent agency pertaining to 
          a building not related to this proceeding superimposed on the lower 
          left-hand portion of the owner's exhibit.  The Commissioner is of 
          the opinion that the above-mentioned superimposed receipt obscured 
          part of the owner's exhibit; that it served no purpose but to 
          confuse the issues in this proceeding, and that by doing so the 
          owner diminished his credibility in this proceeding.







          Docket No. BI 710021-RO

              As to the owner's assertion that the $5.00 per month late 
          penalty which is "contained" in the tenant's base lease "should 
          receive guideline increments, the Commissioner finds that this 
          would violate Section 2502.5 (c) (7) of the STPR.  The above- 
          mentioned section states that:

                   The lease provided to the tenant by the landlord... 
               shall be on the same terms and conditions as the last 
               lease prior to the local effective date except where a 
               change is required or authorized by a law applicable to 
               the building or to leases for housing accommodations 
               subject to the Act....

              The Commissioner finds that there is no provision in the STPR 
          or the Emergency Tenant Protection Act of 1974 which would permit 
          an increase in late fees from the amount set-forth in the 
          apartment's base date lease.

              As paragraph 27 of the tenant's 1976-1977 lease states that the 
          tenant will be charged a $5.00 late fee for rent payments not 
          received within "five days from the due date," the Commissioner 
          finds that the subject owner may not charge the subject tenant in 
          excess of $5.00 for late fees.

              The Commissioner notes that the owner does not deny charging 
          the subject tenant $30.00 in excess late fees, but merely states 
          that the tenant does not substantiate his allegation of being 
          charged excess late fees.

              As the owner in the proceeding before the Administrator did not 
          deny the tenant's allegation of being charged $20.00 in late fees 
          for June 1987; that the tenant in his answer to the owner's 
          petition asserts that the owner is still charging a late fee of 
          $20.00, and that the tenant attached to his complaint the February 
          1, 1987, and March 1, 1987 rent bills which both show a previous 
          balance of $23.85 ($20.00 late charge + 3.85 for the smoke 
          detector), the Commissioner finds that based on the preponderance 
          of the evidence in this proceeding the owner charged the tenant 
          $30.00 in excess late fees.

              The Commissioner further finds that if the subject owner did 
          refund the excess late fees to the tenant, this fact would not 
          warrant the revocation or modification of the Administrator's 
          order.

              Accordingly, the Commissioner finds that the owner's petition 
          should be denied.

              THEREFORE, in accordance with the Emergency Tenant Protection 
          Act of 1974, and the State Tenant Protection Regulations, it is

              ORDERED, that this petition be, and the same hereby is, denied, 












          Docket No. BI 710021-RO

          and that the Rent Administrator's order be, and the same hereby is 
          affirmed; and it is

              FURTHER ORDERED, that the owner may not collect late fees from 
          the tenant in excess of $5.00 per month; and it is

              FURTHER ORDERED, that the owner, Arthur T. Mott, shall 
          immediately refund to the tenant all amounts not yet refunded 
          representing overcharges; and it is

              FURTHER ORDERED, that if the owner, Arthur T. Mott, has not 
          refunded the stated amounts as of the expiration of the time for 
          commencing a proceeding under Article 78 of the Civil Practice Law 
          and Rules for judicial review of this order, the tenant may recover 
          such amounts by deducting them from the rent due to the owner at a 
          rate not in excess of twenty percent of the amount to be refunded 
          for any one month's rent.  If, after such period, the owner has 
          refunded no such amounts and the tenant has not made any such 
          deductions from his rent as an offset, then the tenant may file and 
          enforce a certified copy of this order as a judgment for the amount 
          of $296.52 against Arthur T. Mott.

          ISSUED:



                                                                            
                                             Joseph A. D'Agosta
                                             Acting Deputy Commissioner
    

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