CG 410092 RT; DA 410069 RO

                                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
      APPEALS OF                             DOCKET NO. CG 410092 RT
                                                        DA 410069 RO

                                          :  DISTRICT RENT OFFICE
           James Gazlay, tenant,             DOCKET NO. BA 510352 R
           600-602 Avenue Realty Corp.,      
                                  owner,
                  

                            PETITIONER    : 
      ------------------------------------X                             

      ORDER AND OPINION GRANTING TENANT'S PETITION FOR ADMINISTRATIVE REVIEW
            AND DISMISSING OWNER'S PETITION FOR ADMINISTRATIVE REVIEW


      On July 20, 1988 and January 13, 1989, the above-named parties filed  
      petitions for administrative review ("PARs") of an order issued on      
      June 27, 1988, by a Rent Administrator, concerning the housing 
      accommodations known as 600 10th Avenue, New York, New York, Apartment 
      No. 4FS, wherein the Administrator determined that the owner had 
      overcharged the tenant.

      This proceeding originated with the tenant's overcharge complaint of 
      January, 1987.  In response the owner submitted a rental history of the 
      subject accommodations and a copy of the Annual Apartment Registration 
      thereof for 1985.

      In the ensuing order, here appealed, the Administrator has (1) 
      established the "April 1, 1984 Initial Legal Registered Rent" at $567.23 
      per month based on the figure previously determined in the proceeding 
      docketed at number U-3122743-R, and (2) concluded that there was an 
      overcharge of $1074.94 including interest and excess security.

      The tenant now protests that "[s]ince prior tenant was awarded treble 
      damages (see attached copies [of the order in U-3122743-R]) for 'willful 
      overcharge,' . . .  I should receive also, as it was brought to owner's 
      attention prior to 8/86."  The owner does not reply to this argument, 
      and the grounds for the owner's petition are immaterial for the reason 
      set forth below.  


      The Commissioner is of the opinion, after careful consideration of the 
      record, that the tenant's petition should be granted and the owner's 












          CG 410092 RT; DA 410069 RO

      dismissed.

      Treble damages are the norm in overcharge cases, the exception to their 
      imposition being when owner has established before the Administrator, 
      that the overcharges were not willful.  Because the owner made no such 
      showing in the instant matter, the Administrator should have ordered the 
      refund of three times the overcharge (without interest) rather than of 
      the overcharge plus interest.  The Commissioner will therefore make that 
      revision.

      Turning to the owner's petition, applicable regulations and Operational 
      Bulletin 84-1 of this agency provide that a petition for administrative 
      review must be filed within 35 days of the issuance of the order 
      appealed from.  This petition was not filed during that period, and as 
      there is no provision in the applicable regulations for extending the 
      time for filing a PAR, the Commissioner concludes that the owner's 
      petition must be dismissed.

      (The Commissioner is aware that in the proceeding docketed at number 
      38723, a Rent Administrator determined that because the previous tenant 
      had received a copy of the 1984 registration document for the subject 
      apartment (stating a higher rental than that determined by the 
      Administrator herein) and had not objected to its contents within 90 
      days, that tenant was precluded from making such an objection.  That 
      determination was issued on September 30, 1987.  The order relied upon 
      by the Administrator herein (the aforementioned # U-3122743-R), however, 
      was issued in 1986 and not appealed.  It was therefore binding as to the 
      legal 1984 rent before number 38723 was decided.  Thus to the extent 
      that those two orders are contradictory, U-3122743-R controls, and was 
      therefore correctly utilized in the determination here appealed).

      The Administrator herein found an overcharge of $954.96.  Trebling that 
      yields $2,864.88, and addition of the $79.58 in excessive security 
      deposited (also found by the Administrator) yields a total refund of 
      $2,944.46.

      Because this determination concerns lawful rents only through           
      January 31, 1987, the owner is cautioned to adjust subsequent rents to 
      an amount no greater than that determined by this order plus any lawful 
      increases, and to register any adjusted rents with this order and 
      opinion being given to explain the adjustment.  The lawful rent as of 
      the last-mentioned date is $670.42.  A copy of this order is being sent 
      to the current tenant.





      The tenant (having vacated the subject premises) may, upon expiration of 
      the period in which the owner may institute a proceeding pursuant to 
      Article 78 of the Civil Practice Law and Rules, file and enforce this 
      order in the same manner as a judgment.






          CG 410092 RT; DA 410069 RO


      THEREFORE, in accordance with the Rent Stabilization Law and Code, it is

      ORDERED, that the petition docketed at number CG 410092 RT be and the 
      same hereby is granted and that the petition docketed at number DA 
      410069 RO be and the same hereby is dismissed and that the Rent 
      Administrator's order be, and the same hereby is, modified to impose 
      treble damages rather than interest so that the total amount of the 
      overcharge is $2,944.46.


      ISSUED:



                                                                    
                                      JOSEPH A. D'AGOSTA
                                      Acting Deputy Commissioner




                 









































          CG 410092 RT; DA 410069 RO


    

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