Docket Number: BJ 410261-RT
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
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IN THE MATTER OF THE ADMINISTRATIVE : ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.: BJ 410261-RT
:
LEONARD SMALHEISER, DRO DOCKET NO.: 11467
PETITIONER : OWNER: Joseph B. Koppelman
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ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW,
IN PART AND MODIFYING DISTRICT RENT ADMINISTRATOR'S ORDER
On October 27, 1987, the above-named petitioner-owner filed a
Petition for Administrative Review against an order issued on
October 15, 1987, by the District Rent Administrator, 10 Columbus
Circle, New York, New York, concerning the housing accommodations
known as Apartment 1-C at 438 E. 13th Street, New York, NY, wherein
the District Rent Administrator determined that the tenant had been
overcharged.
The Commissioner has reviewed all 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 originally commenced by the filing by the tenant
of a tenant's objection to the apartment registration including a
fair market rent appeal and a rent overcharge complaint. The tenant
took occupancy pursuant to a lease commencing December 7, 1983 and
expiring December 6, 1984 at a monthly rent of $346.00.
In answer, the owner submitted rent records from the base date and
indicated that the tenant's initial rent had included a charge for
improvements. The owner also submitted documentation of the
installation of a new boiler in the subject building in 1980.
By notices from the DHCR, the owner was requested to submit copies
of cancelled checks and receipts to document the claimed
improvements as well as a copy of an MCI order for the boiler. The
owner failed to respond to these notices.
In the Order under appeal herein, the District Rent Administrator
determined the lawful stabilized rent from April 1, 1980, determined
that the tenant had been overcharged in the amount of $5,216.63, and
directed the refund of this amount to the tenant.
In this petition, the tenant contends that the District Rent
Administrator failed to calculate the overcharge through October 15,
1987, the date of issuance of the Administrator's order; failed to
correctly calculate the amount or interest; and failed to include
excess security or treble damages. The tenant asserts that the
prior tenant's rent was $177.01 while the tenant's initial rent was
$346.00, and that the owner has offered no evidence to prove that
Docket Number: BJ 410261-RT
the overcharge was not willful.
In answer to this petition, the owner states that he has
recalculated the overcharge through the date of the Administrator's
order and refunded the overcharge to the tenant and that he will
refund interest and excess security to the tenant. The owner also
asserts that there is no basis for an award of treble damages as the
tenant's initial rent included a charge for improvements to the
apartment and to the building for which credit was not given; that
when it became apparent that the improvements would be disallowed,
the owner stopped collecting rent; and that a final adjustment was
made when the Administrator's order was received.
The Commissioner is of the opinion that this petition should be
granted in part.
By amended order issued on November 13, 1987, the Administrator
modified his earlier order to include overcharge calculations
through November 30, 1987 and to include excess security. Therefore
the Commissioner finds that these issues are moot.
Section 2526.1(a)(1) of the Rent Stabilization Code states, in
pertinent part, that where the DHCR finds that a tenant has been
overcharged in rent it shall assess a penalty equal to three times
the amount of the overcharges found against the owner (effective
April 1, 1984) unless the owner establishes by a preponderance of
the evidence that the overcharge was not willful, in which case
interest shall be imposed.
In this case, the owner has failed to document any alleged
improvements to the subject apartment. DHCR records indicate no MCI
order for a new boiler to the subject building. The Commissioner
finds that the owner has failed to establish by a preponderance of
the evidence that the overcharge was not willful and therefore
treble damages should be imposed, rather than interest.
The total amount of overcharge is recalculated on the attached
rental history chart, which is fully made a part of this order.
This order may, upon the expiration of the period in which the owner
may institute a proceeding pursuant to Article Seventy-eight of the
Civil Practice Law and Rules, be filed and enforced by the tenant in
the same manner as a judgment or not in excess of twenty percent
thereof per month may be offset against any rent thereafter due the
owner.
THEREFORE, in accordance with the Rent Stabilization Law and Code,
it is
Docket Number: BJ 410261-RT
ORDERED, that this petition be and the same hereby is granted in
part and the District Rent Administrator's order be and the same
hereby is modified to the extent hereinabove indicated.
ISSUED:
ELLIOT SANDER
Deputy Commissioner
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