STATE OF NEW YORK
DIVISION OF HOUSING AND COMMUNITY RENEWAL
OFFICE OF RENT ADMINISTRATION
92-31 UNION HALL STREET
JAMAICA, NEW YORK 11433
IN THE MATTER OF THE ADMINISTRATIVE : ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO. BK410356RO
: DRO DOCKET NO. 32279
MILFORD MANAGEMENT CORP. TENANT: LILLIAN & EFREM FELD
ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
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
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
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