DOC. NO.: CF 910190-RT
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. CF 910190-RT
DISTRICT RENT
VICTORIA HEREDIA, PETITIONER : ADMINISTRATOR'S
------------------------------------X DOCKET NO. HBD 9-1-0001R
ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
IN PART
On June 1, 1988, the above-named tenant filed a petition for
administrative review of an order issued on May 17, 1988 by a
District Rent Administrator concerning the housing accommodations
known as Route 202 The Manors, Apartment 3F, Pomona, New York,
wherein the Administrator dismissed the tenant's overcharge
complaint.
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 petition for review.
On April 6, 1987, the tenant filed a specific complaint of rent
overcharge. The tenant stated that she took occupancy of the
subject apartment pursuant to a lease effective November 14, 1985
through July 31, 1987 at an initial rental of $535.38. The tenant
stated that on August 1, 1986 the owner raised the rent by $24.09,
and that this charge is unlawful. The tenant submitted with her
complaint the lease in question which did contain a provision for
a lease increase as of August 1, 1986.
The owner failed to reply, and, in accordance with the notices sent
to the owner, the Administrator's determination was based upon the
evidence already in the record, and the registered rental history
of the subject apartment.
In the order here under review, the Administrator determined that
no rent overcharge occurred and the tenant's complaint was
dismissed. The Administrator found that the tenant took occupancy
after a vacancy. The owner took a vacancy allowance for the
unexpired term of the existing lease, and the parties agreed to a
one-year additional term which included a 4 1/2% one-year guideline
increase from August 1, 1986 to July 31, 1987. The order also
found that all subsequent increases were in compliance with the
rent guidelines.
DOC. NO.: CF 910190-RT
In her petition for administrative review the tenant alleges that
some of the Administrator's calculations in the order were
erroneous. In addition, she asserts that she has been
inappropriately assessed late charges on some of the rent payments
subsequent to the increase when she withheld the increase from her
payments. Finally, the tenant states that the owner has not
maintained certain services.
The owner again failed to file any answer to the tenant's petition
for review.
After careful consideration, the Commissioner is of the opinion
that this petition should be granted in part.
The tenant took occupancy on November 14, 1985, before the prior
lease expired. Section 2502.5(c)(6) of the Tenant Protection
Regulations is determinative in the instance. The regulation
states that the vacancy lease should be based on the amount which
would be permissible if the last lease had been for a term ending
on the date the prior tenant vacated. In accordance with DHCR
policy and precedent, in housing accommodations subject to the
tenant Protection Regulations, a landlord may not collect any
guideline increase for a renewal lease of less than one year, the
Commissioner is basing his recalculation on the rental paid for the
period of August 1, 1984 to July 31, 1985 ($495.04), rather than
the rental paid during the brief, unexpired lease term beginning
August 1, 1985 ($509.89). The resulting computations indicate that
a rent overcharge did occur. Therefore, the lawful stabilization
rent is established as $579.39 for the lease period of August 1,
1987 through July 30, 1989, and all subsequent rentals should be
based on this amount.
The Commissioner is finding, for the first time in this proceeding,
that an overcharge occurred. Accordingly, the issue of treble
damages must be considered. The general rule states that treble
damages will be imposed unless the owner proves by a preponderance
of the evidence that the overcharge was not willful. Since the
owner submitted no evidence whatsoever in this case, it clearly
failed to meet its burden of proof. Therefore, the overcharge of
$102.44 through March 17, 1988 is trebled, and the total
overcharges are $312.58 including excess security ($5.26).
The pertinent calculations are set forth on the annexed Rent
Calculation Chart which is fully incorporated into and made part of
this order and opinion.
The tenant alleges that she is inappropriately being assessed late
charges. Since this issue was not part of the tenant's complaint
DOC. NO.: CF 910190-RT
and was not presented before the Rent Administrator it will not be
considered in this petition for administrative review.
Similarly, the tenant's claim of a diminution of services is not
properly at issue in this administrative appeal. The service
complaint is being processed and shall be resolved independently
from this overcharge complaint.
THEREFORE, pursuant to the Emergency Tenant Protection Act and the
Tenant Protection Regulations, it is
ORDERED, that this petition be, and the same hereby is, granted in
part, and that the District Rent Administrator's order be, and the
same hereby is, revoked, and it is
FURTHER ORDERED, that the owner is directed to refund $312.58 to
the tenant immediately. If the owner has not complied, the tenant
may, upon the expiration of the period in which the owner may
institute a proceeding pursuant to Article Seventy-Eight of the
Civil Practice Law and Rules, offset against any rent thereafter
due the owner not in excess of twenty percent thereof per month.
ISSUED:
ELLIOT SANDER
Deputy Commissioner
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