CK 610025-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
APPEAL OF                               DOCKET NO.:
                                        CK 610025-RO
       R & G ASSOCIATES,                DISTRICT RENT
                                        ADMINISTRATOR'S DOCKET
                                        NO.:
                                        21606
                         PETITIONER     TENANT: Martha Castillanos
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   ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW


On   November  2, 1988, the above-named petitioner-owner  filed  a
Petition  for  Administrative Review against an  order  issued  on
October  4,  1988  by  a  Rent  Administrator  concerning  housing
accommodations  known as Apartment 2-E at 108 West  227th  Street,
New  York,  New  York,  wherein  the District  Rent  Administrator
determined that the tenant had been overcharged in the  amount  of
$3,390.24, including treble damages and excess security.

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 administrative appeal.

This  proceeding  was originally commenced by the  filing  by  the
tenant on August 15, 1984 of an objection to the Initial Rent  and
Services Registration.

The  tenants took occupancy in October, 1971 at a rent of  $175.00
per month.

The owner was served with a copy of the complaint and was directed
to  submit  a complete rent history from the base date,  including
copies  of all leases.  The owner failed to submit several leases.
However, the tenant was able to provide them.

In  an  order  issued  on October 4, 1988, the Rent  Administrator
determined that the tenant had been overcharged in the  amount  of
$3,390.24, including treble damages and excess security.

In  its petition, the owner contends that the imposition of treble
damages  was  unjust because the error causing the overcharge  was
made  by  one  of its employees when setting the tenant's  initial
rent,  but  that  the owner was not aware of it.   Therefore,  all
overcharges were due to an honest error.

The  Commissioner is of the opinion that this petition  should  be
denied.

Section  26-516  of the Rent Stabilization Law provides  that  any
owner  who  is  found by the DHCR to have collected an  overcharge
shall  be liable to the tenant for treble damages unless the owner
establishes   by  a  preponderance  of  the  evidence   that   the
over-charge  was  not  willful, in which case  interest  shall  be
imposed. Section 26-516 also provides that treble damages shall be
applied only to overcharges occurring on or after April 1, 1984.

The record in this case establishes that, although notified of the
possible imposition of treble damages, the owner failed to  submit
any evidence to counter the presumption that overcharges occurring
after  April 1, 1984 were willful.  The contention that the  error
causing  the overcharge was unbeknownst to the owner is vague  and
unsubstantiated  and,  in any case, will  not  be  con-sidered  on
appeal  because  the owner failed to assert the claim  during  the
processing  of the case. Finally, it is noted that the claim  that
the  error  occurred  when setting the tenant's  initial  rent  is
incorrect, since the tenant assumed occupany in October, 1971,  at
which time the premises were not subject to the Rent Stabilization
Law.


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

ORDERED,  that  the owner's petition be, and the same  hereby  is,
denied  and that the Administrator's order be, and the same hereby
is, affirmed.


ISSUED:




JOSEPH A. D'AGOSTA
                                         Deputy Commissioner
    

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