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


      ------------------------------------X 
      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    : 
      ------------------------------------X                             


           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 







          CC410168RO

      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, 


          CC410168RO

      respectively.



      ISSUED:



                                                                    
                                      JOSEPH A. D'AGOSTA
                                      Deputy Commissioner





    

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