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
Fewer 9/9
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IN THE MATTER OF THE ADMINISTRATIVE
APPEAL OF ADMINISTRATIVE REVIEW
Michael Schneider, Owner DOCKET NOS: BJ110203RO,
and BJ110234RT
Donna Martinello, Tenant D.R.O. DOCKET NO: 43441
PETITIONERS
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ORDER AND OPINION GRANTING IN PART BOTH THE TENANT'S AND OWNER'S
PETITIONS FOR ADMINISTRATIVE REVIEW.
On September 12, 1987 and September 29, 1987 the above named
petitioners filed Petitions for Administrative Review against an
order issued on August 27, 1987, by the District Rent
Administrator, 10 Columbus Circle, New York, New York, concerning
housing accommodations known as Apartment 4A, 45-16 44th Street,
Sunnyside, New York, wherein the District Rent Administrator
determined that the owner had overcharged the tenant.
The issue in these appeals is whether the District Rent
Administrator's order was warranted.
The applicable sections of the law are Sections 2522.4 and 2526.1
of the Rent Stabilization Code.
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 appeals.
This proceeding was commenced on August 31, 1984 by the tenant's
filing of an objection to the rent/services registration wherein
the tenant contended in substance that she was being overcharged,
and that her stove and refrigerator were defective.
In its answer to the tenant's objection, the owner contended in
substance that the prior tenant made an agreement with the prior
owner whereby the prior tenant would provide his own refrigerator
in return for a $10.00 rent reduction; that when the current
tenant moved in, the owner installed a refrigerator and
reinstated the $10.00 charge; and the owner is entitled to a
$9.80 rent increase for a new stove which was installed in the
subject apartment in May of 1986.
In Docket Number 43441 issued August 27,1987, the District Rent
Administrator determined that the tenant had been overcharged
since Janury 1,1986, and accordingly directed the owner to refund
to the tenant $2969.52 which included excess security and treble
damages on that portion of the overcharge occurring on or after
April 1, 1984.
The tenant, in her petition, contends in substance that the
District Rent Administrator's order is incorrect and should be
modified because she never consented to rent increases for the
installations of a new stove and refrigerator.
The owner, in his petition, contends in substance that the
District Rent Administrator's order is incorrect and should be
modified because in 1981 he was new to the business of apartment
house management, had limited knowledge of English and of rent
stabilization, and therefore he did not willfully overcharge the
tenant, and treble damages should not apply.
In response the tenant contends in substance that treble damages
are justified.
In rebuttal, the owner contends in substance that treble damages
should not be imposed, and that the prior tenant paid a monthly
rent of $189.00 rather than $184.63. In support of these
contentions, the owner submitted a copy of a stipulation
agreement signed by the Hon. Eugene J. Barkowitz of the New York
City Civil Court, Queens County dated August 29, 1980 wherein it
was agreed that the monthly rent for the subject apartment was
$189.00.
The Commissioner is of the opinion that both the owner's and
tenant's petitions should be granted in part.
An examination of the record in the instant case indicates that
the base rent for the subject apartment was $189.00 rather than
$184.63 as evidenced by the above-mentioned court stipulation.
Accordingly, the Commissioner finds that the Administrator
improperly set the base rent for the subject apartment as
$184.63.
A further examination of the rental history for the subject
apartment discloses that the lease commencing on January 1, 1983
was a three year renewal lease which terminated on December 31,
1985. Unfortunately, the Administrator incorrectly considered
this lease as a two year lease.
Section 2522.4 of the Rent Stabilization Code provides in
pertinent part that an owner is entitled to a monthly rent
increase of one-fortieth of the total cost for the installation
of new equipment in a tenant's apartment upon the tenant's
written consent to the rent increase. In the case of vacant
housing accommodations, tenant consent shall not be required. In
the instant case, the tenant did not consent to a rent increase
of either the new stove or refrigerator. Thus, the Commissioner
finds that the Administrator incorrectly permitted a rent
increase of $9.80 for the new stove installation.
The Commissioner notes that for the two year renewal lease
commencing January 1, 1986, the owner retained a security deposit
of $284.55. Since the legal regulated rent for this lease term
($297.52) is more than the amount of the security deposit, the
Commissioner finds that there is no excess security in this case.
Based on the foregoing, the Commissioner has recalculated the
lawful stabilization rents and amounts of overcharge on the
amended rent calculation chart attached hereto and made a part
hereof.
Finally, with regard to the owner's contention that the
imposition of treble damages was erroneous because the
overcharges were not willful, the Commissioner notes that the
owner has not submitted any evidence to support his bare
allegation. Hence, the Commissioner finds that the Administrator
correctly assessed treble damages on that portion of the
overcharge occurring on or after April 1, 1984.
Because this determination concerns lawful rents only through
the date of August 31, 1987 used in the Administrator's order
being appealed, the owner is cautioned to adjust subsequent rents
to an amount no greater than that determined by this order plus
any lawful increases, and to register any adjusted rents with
this Order and Opinion being given as the explanation for the
adjustment.
If the owner has already complied with the Rent Administrator's
order and there are arrears due to the owner as a result of the
instant determination, the tenant shall be permitted to pay off
the arrears in twelve equal monthly installments. Should the
tenant vacate after the issuance of this order or have already
vacated, said arrears shall be payable immediately.
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 as a
judgement 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 Rent Stabilization Law and
Code, it is
ORDERED, that the tenant's petition (BJ110234RT) be, and the same
hereby is, granted in part, that the owner's petition
(BJ110203RO) be, and the same hereby is, granted in part, and
that the District Rent Administrator's order be, and the same
hereby is, modified in accordance with this order and opinion.
The lawful stabilization rents and amounts of overcharge are
established on the attached chart which is fully made a part of
this order.
ISSUED:
ELLIOT SANDER
Deputy Commissioner
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