STATE OF NEW YORK
                            OFFICE OF RENT ADMINISTRATION
                                     GERTZ PLAZA
                               92-31 UNION HALL STREET
                               JAMAICA, NEW YORK 11433

          APPEAL OF                              DOCKET NO. BK410356RO        
                                              :  DRO DOCKET NO.  32279

                                PETITIONER    : 

               On November 24, 1987, the above-named petitioner-owner filed 
          duplicate Petitions for Administrative Review against an order 
          issued on October 19, 1987, by the Rent Administrator, 92-31 Union 
          Hall Street, Jamaica, New York, concerning the housing 
          accommodations known as 155 West 68 Street, New York, Apartment No.  
          1529  wherein the Rent Administrator determined that the owner had 
          overcharged the tenant.

               The issue herein is whether the Rent Administrator's order was 

               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 originally commenced by the filing on      
          September 11, 1984 of a rent overcharge complaint by the tenant.

               In response to the tenant's complaint, the owner submitted a 
          complete rent history.  

               In the order here under review, the Administrator determined 
          that an overcharge had occurred and directed the owner to refund 
          $625.66 inclusive of excess security and treble damages. 
               In this petition, the owner contends in substance that its 
          collection of an overcharge was inadvertent, the result of 
          incorrectly including a fuel charge in the base rent before adding 
          a guideline increase and that, therefore, it is inappropriate to 
          assess treble damages on the overcharge.  The owner points out that 
          it has consistently charged less rent than the permissible legal 
          regulated amount.  Further, the owner contends that the correct 
          apartment number is 1529 rather than 1527.

            The tenant did not respond to an opportunity to answer the 
               The Commissioner is of the opinion that this petition should be 

          BK410356RO, BL410253RO

               Pursuant to Section 2526.1 of the Rent Stabilization Code, a 
          penalty of treble damages is imposed on all willful overcharges.  
          Interest is assessed on those overcharges where an owner proves by 
          a preponderance of the evidence that the  overcharge was not 

                    n the instant case, the owner has not established that the 
          overcharge was not willful.  It is clear that fuel surcharges are 
          temporary increases which do not become part of the base rent on 
          which future renewal lease increases are calculated.  The fact that 
          the owner may have charged less than was legally permitted at one 
          point does not excuse the later rent overcharge which occurred.  
          Accordingly, the imposition of treble damages was warranted.  
               The record indicates that the subject building was converted to 
          coop/condo status during the pendency of this proceeding and that 
          the subject apartment was exempted from rent stabilization at that 
          time.  The Rent Administrator's order is modified to reflect the 
          correct apartment number - 1529 rather than 1527.

               The Commissioner has determined in this Order and Opinion that 
          the owner collected overcharges of $ 625.66.  This Order may, upon 
          expiration of the period for seeking review of this Order and 
          Opinion pursuant to Article Seventy-eight of the Civil Practice Law 
          and Rules, be filed and enforced as a judgment. Where the tenant 
          files this Order as a judgment, the County Clerk may add to the 
          overcharge, interest at the rate payable on ajudgment pursuant to 
          section 5004 of the Civil Practice Law and Rules from the issuance 
          date of th Rent Administrator's order to the issuance date of the 
          Commissioner's Order.

               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, modified in accordance 
          with this order and opinion.


                                          JOSEPH A. D'AGOSTA
                                          Deputy Commissioner


          BK410356RO, BL410253RO


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