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
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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 :
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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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