Docket No. CB 710179-RO
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. CB 710179-RO
Tenant: Benjamin Alers
Arthur T. Mott
ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On February 16, 1988, the above-named owner filed a petition
for administrative review of an order issued on February 4, 1988
by the District Rent Administrator, concerning the housing
accommodation known as Apartment 4-A, 35 North Long Beach
Avenue, 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 a complaint by
the tenant, dated November 28, 1986, which alleged that the owner
failed to provide the subject tenant a signed copy of the renewal
The tenant took occupancy pursuant to a two-year lease
commencing on April 15, 1978 at a monthly rent of $375.00.
On December 19, 1986, the rent agency mailed a notice to the
owner requesting that he submit to the Division of Housing and
Community Renewal (DHCR) a "copy of the present tenant's lease
and a copy of the lease immediately prior thereto."
On December 24, 1986 the owner submitted to the rent agency a
copy of the then present lease commencing on April 1, 1986, and
expiring on March 31, 1988, at a monthly of $539.96, and the
prior lease commencing on April 1, 1983 and expiring on March
31, 1986 at a monthly rent of $507.00.
On December 30, 1986, the tenant responded to the owner's
answer stating that:
On 12-30-86 the landlord had a copy of my current
lease delivered to my apartment. The lease is signed
Docket No. CB 710179-RO
by the landlord; however for the record the landlord
added a new term and condition that I did not agree to
nor was it discussed with me and it has never been on
any previous leases, namely-'Tenant is subject to a
$20.00 late charge for rent received after the 10th of
On February 20, 1987, the Administrator issued an order
determining that the owner did not offer the tenant a renewal
lease "on an RTP-8 lease renewal form," and altered the terms
and conditions of the tenant's prior lease, which is in
violation of the Emergency Tenant Protection Act (ETPA). The
Administrator found that the owner was not permitted to a
guideline increase as the owner did not "offer the lease to the
tenant on the prescribed notice form." The Administrator
directed the owner to refund to the tenant $329.60 in
overcharges, and a $250.00 penalty for violating the requirements
of the State Tenant Protection Regulations (STPR) pertaining to
On February 23, 1987, the rent agency received a letter from
the subject owner requesting that the Administrator reconsider
its determination, on the grounds that the owner did timely send
to the subject tenant a signed "RTP-8" ("Owner's Notice To Tenant
For Renewal Of Lease"), and that it did not submit the
aforementioned RTP-8 to the Administrator because the
Administrator only requested that the owner submit leases, and
did not request a lease "renewal".
To the letter the owner attaches a copy of the "RTP-8" form,
which is dated November 18, 1985, and was signed by the tenant on
January 3, 1986.
On March 3, 1987, the Administrator mailed to the parties to
this proceeding a "Notice of Commencement of Proceeding to Modify
or Revoke Order," to determine if the tenant received and signed
the RTP-8 form, and the effective date of the current lease.
The subject tenant submited a response , dated March 6, 1987,
to the owner's aforementioned letter, which stated that:
I received and signed R.T.P.-8. Notice of Renewal of
Lease. See enclosed copy letter and envelop (Sic).
Also note the entire form was blank and I wrote in all
letters and numbers. On the RTP the landlord sent to
you and which you sent to me is back dated to 11/18/85
and signed. As you can see from my copy Mr. Mott did
not sign it and it has no date.
To his response the tenant submitted the aforementioned RTP-8
form, in which the date, and the space for the owner's signature
The tenant also submitted the envelope in which the RTP-8
form was mailed in, which is post marked December 3, 1985.
On March 12, 1987, the subject owner submitted a response to
the rent agency which alleged that the RTP-8 form was timely
mailed by certified mail.
Docket No. CB 710179-RO
To his response the owner attaches a "Receipt For Certified
Mail" which is postmarked November 29, 1985, which shows that an
item which the owner alleged was the RTP-8 form, was mailed to
the subject tenant.
In the order under review herein, which supersedes the
Administrator's order, dated February, 20, 1987, the
Administrator determined that the owner did timely serve the
tenant a renewal lease, and therefore, revoked the $329.60 in
overcharges. The Administrator further determined that the owner
altered the terms and conditions of the tenant's prior lease, and
assessed a $250.00 penalty against the owner.
On February 12, 1988, the Administrator issued an order which
corrected a typographical error in the above-mentioned order.
In this petition the owner asserts that the $250.00 penalty
that was imposed by the Administrator's order should be revoked,
in that the Administrator had determined that the renewal lease
was served timely, and that the RTP-8 form that was signed by the
The signing by you of this execution of lease
understanding shall constitute a binding agreement
between us and will incorporate all other terms of the
prior lease except wherein specifically modified,
changed, or amended herein.
The owner does not attach an RTP-8 form to his petition, but
he does attach a letter to the tenant which contai s the above-
mentioned quote found in the owner's petition. The letter
requests that the tenant decide whether he wishes to renew his
lease or not, and informs the tenant of the new rents, based upon
whether the tenant renews his lease for one year or two years.
The tenant's answer to the owner's petition, dated March 29,
1988, among other things, reiterates the allegations which were
submitted in the proceeding that was in front of the
Administrator; that the lease was not renewed properly, and the
$579.60 overcharge penalty that was noted in the Administrator's
original order was correct and should be reinstated.
After careful consideration the Commissioner is of the
opinion that this petition should be denied.
As the tenant did not file a petition of the Administrator's
order, the Commissioner finds that the portion of the
Administrator's order pertaining to the timeliness of the owner
serving the renewal lease, and the revocation of the overcharge
penalty that was noted in the Administrator's original order, is
a final determination of the rent agency, and therefore, are
issues that are not in front of the commissioner in this
Pursuant to Section 2503.5 (a) of the STPR the offer to renew
a lease must be "on the same conditions as the expiring
lease...." As the lease that was in effect prior to the lease
that commenced on April 1, 1986 did not contain a clause stating
Docket No. CB 710179-RO
that the tenant would be subject to late charges for rent
received after the tenth of the month, the Commissioner finds
that the Administrator's order correctly determined that the
owner did in fact alter the terms and conditions of the tenant's
Section 2506.2 (b) of the STPR states:
if the Division finds that any landlord has knowingly
engaged in acts prohibited by the Act and Regulations
or orders issued thereunder, it may assess the landlord
and order it to pay each tenant affected by such acts
the reasonable costs and attorney fees of the
proceeding plus a penalty not in excess of $250.00 for
each such act.
As the owner "engaged" in an act that is "prohibited by the
Act and Regulations," i.e., altering the terms and conditions of
the tenant's prior lease, the Commissioner finds that the
Administrator's assessment of a $250.00 penalty against the owner
The Commissioner finds that the letter that the owner
attaches to his petition, which the owner asserts is a "RTP-8
form, is in fact not an "RTP-8 form, but is an unlawfully
prepared renewal lease. Pursuant to Section 2503.5 (a) of the
STPR, the "Notice of renewal of lease" must be "On a form
prescribed by the Division." Accordingly, the Commissioner finds
that the letter which is attached to the owner's petition is of
no evidentiary value in this proceeding.
Accordingly, the owner's petition is denied.
THEREFORE, in accordance with the provisions of the Teannt
Protection Regulations, it is
ORDERED, that this petition be, and the same hereby is,
denied, and that the Rent Administrator's order that was issued
on February 4, 1988 and modified on February 12, 1988 be , and
the same hereby is, affirmed, and it is
FURTHER ORDERED, that the owner shall immediately refund to
the tenant all amounts not yet refunded representing penalties
assessed by the Administrator; and it is
FURTHER ORDERED, that if the owner has refunded no such
amounts upon the expiration of the period for seeking judicial
review of this order pursuant to Article 78 of the Civil Practice
Law and Rules, and the tenant has credited no such amounts, the
tenant may recover the total penalty of $250.00 (or so much of
it as may still be owing) by deducting it from the rent due to
the owner at a rate not in excess of twenty percent of the amount
of the penalty for any one-month's rent.
Docket No. CB 710179-RO
Joseph A. D'Agosta
Acting Deputy Commissioner