CC410168RO
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. CC410168RO
: DISTRICT RENT OFFICE
West 159th Realty Co., DOCKET NO. U3123517R
TENANT: James Johnson
PETITIONER :
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On March 12, 1988, the above-named owner refiled (as authorized by the
Commissioner in his order of March 7 rejecting a previous filing for
procedural reasons) a Petition for Administrative Review against an
order of a Rent Administrator issued on December 29, 1987, wherein the
Administrator had determined that the tenant of the housing
accommodations known as Apartment 3 at 467 West 159th Street in New York
City had been overcharged.
This proceeding had its origin in an overcharge complaint of February,
1984. In the ensuing order, here appealed, the Administrator determined
that the owner had failed to submit a complete rental history and
therefore (starting his calculations with a lawful rent adopted from
apartment B52, "lowest rent in the same size apartment in the same
building") that the tenant had been overcharged in the amount of
$13,100.87, including treble damages on the overcharges that had
occurred on and after April 1, 1984, and excessive security deposited,
and directed the owner to refund that sum to the tenant as well as to
reduce the rent.
The pertinent portion of the instant petition reads in its entirety as
follows. "Improper computation determination on original order no
willful overcharge, improper charge of treble damages." The
Commissioner will supplement that "improper computation" language with
what the owner wrote in a letter to the Administrator dated January 29,
1988: "The base rent used in the computation as the starting point
[,where the owner has not supplied a complete rental history,] is
supposed to [be] the lowest rent of an equivalently sized apartment . .
. . The . . . DHCR used a lower level apartment which is . . .
smaller."
After careful consideration of the record, the Commissioner is of the
opinion that this petition should be denied.
Three issues can be gleaned from the petition (as supplemented): whether
the Administrator erroneously employed a smaller apartment in the
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subject building in arriving at the initial rent for the computations
herein; whether there is an arithmetical mistake in the Administrator's
computations; and whether the Administrator erred in assessing treble
damages.
The owner would argue (a) that apartment B52 is smaller than the subject
apartment and (b) that therefore its rental could not properly have been
used in calculating the initial lawful rent herein. Neither prong of
that argument survives scrutiny. There is in the first place nothing in
the record to suggest that apartment B52 is in fact smaller than number
3. More important, however, is the fact that according to agency
records, both apartments have four rooms. This Division determines
equivalency between apartments, for the instant purpose, by reference to
room count; see Commissioner's order number BK410153RO. Thus regardless
of its size in square feet, apartment B52 was not incorrectly utilized
in the Administrator's calculations.
Turning to the second issue, petitioner has suggested no particular
error(s) in computation and a review by the Commissioner discloses none,
leaving no reason to disturb the Administrator's order on that ground.
Petitioner, finally, suggests no reason at all to upset the
determination that the overcharge herein was willful (and the consequent
imposition of treble damages). Treble damages are the norm in
overcharge cases, the only exception to their imposition being when the
owner has established before the Administrator that the overcharge was
not willful. Here the petition, quoted above, suggests no way in which
the owner made such a demonstration to the Administrator, and the
Commissioner's review of the record discloses none, so that in this
regard too the order will be affirmed.
The owner is directed to reflect the findings and determinations made in
this order on all future registration statements, including those for
the current year if not already filed, citing this order as the basis
for the change. Registration statements already on file, however,
should not be amended to reflect the findings and determinations made in
this order. The owner is further directed to adjust subsequent rents to
an amount no greater than that determined by this order plus any lawful
increases.
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 in the same manner as a judgment, 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 provisions of the Rent Stabilization
Law and Code, it is
ORDERED, that this petition be, and the same hereby is, denied, and that
the order of the Rent Administrator be, and the same hereby is,
affirmed. The lawful stabilization rent and the amount of the rent
overcharge are, as of December 31, 1987, $241.32 and $13,100.87,
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respectively.
ISSUED:
JOSEPH A. D'AGOSTA
Deputy Commissioner
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