CG110087RT

                                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.:CG110087RT

         Sylpha Waithe,                      DRO DOCKET NO.: 54722

                                             OWNER: Sterling Ridge Realty     
                                 PETITIONER    
      ------------------------------------X                             


          ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW


      On July 15, 1988, the above-named tenant filed a Petition for 
      Administrative Review against an order issued on June 28, 1988, by a 
      Rent Administrator, wherein the Rent Administrator determined that the 
      owner of the housing accommodations known as apartment 1-A at 83-16 
      Lefferts Boulevard, Kew Gardens, New York, had not overcharged the 
      tenant thereof.

      The underlying proceeding was commenced by a Tenant's Objection to 
      Rent/Services Registration, filed in 1985, in which the tenant placed an 
      "X" in the box next to the allegation that the rent shown on her form 
      "RR-1" constituted an overcharge.  (There is no space on the form for 
      comments upon whatever printed allegations the objector has checked 
      off.)

      In April of 1988 the owner submitted copies of the tenant's leases to 
      the Administrator, stating that when it acquired the subject 
      accommodations, the tenant had been paying $314.19 monthly, which "[w]e 
      took . . . as the legal rent," although the applicable lease provided 
      for only $309.48.  "Further investigation," the owner continued, "has 
      shown . . . that . . . during the term of tenant's lease, tenant's rent 
      was increased $4.71 due to installation of storm windows.  Due to the 
      fact that tenant was living in apartment at time of installation and 
      subsequent increase having full knowledge of all events, I do not 
      understand her complaint . . . ."

      The tenant responded that she had "never signed an order for the 
      installation of storm windows, or for an increase in [her] rent."  
      Enclosed were copies of three owner's requests for her signature in 
      connection with such windows, in all of which the signature line was 
      blank.

      In the ensuing order, here appealed, the Administrator included the 
      $4.71 increase for "[n]ew storm windows" in his calculation of the 
      "lawful stabilization rent."  The tenant cites that determination (and 
      the consequent finding of no overcharge) as error, for the reason that 
      no non-vacancy improvement to an apartment can justify a rental increase 
      without the tenant's written consent.  The owner replies in pertinent 
      part that the instant petition contains the tenant's first "objection to 







      CG110087RT

      the rental increase due to the installation of storm windows," to which 
      she could have objected when she filed this case in 1985.  The argument 
      concludes that the Commissioner should preclude petitioner from raising 
      the matter of the windows at this late date.  In a letter from DHCR 
      dated February 10, 1994, the owner was informed that an overcharge may 
      have been collected due to the lack of tenant consent to the windows and 
      that treble damage would be imposed for any willful overcharge.  In 
      response the owner stated that the increase for the new window was 
      imposed by a prior owner and therefore any overcharge on the part of the 
      current owner was not willful. 

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

      Section 2522.4 of the Rent Stabilization Code provides in pertinent part 
      that the tenant's written consent is required to obtain a rent increase 
      based on apartment improvements in an occupied apartment.  In the 
      instant case, no such written consent was obtained, so that the finding 
      of a rent overcharge was warranted.

      Further, the tenant's original Objection alleged an overcharge, thereby 
      placing in issue every component of the rental history of the apartment.  
      Moreover (a) the form as filled out by the tenant could not have been 
      misleading, as it provided no opportunity for the tenant to specify the 
      nature of the overcharge complained of and (b) far from waiting until 
      she had filed the instant petition, the tenant, as related above, 
      clearly raised the issue of the new-window increase before the Rent 
      Administrator.  Thus there is no reason not to consider the error raised 
      herein.

      The Administrator's calculations will be modified as follows.  Under the 
      renewal lease that became effective August 1, 1983, the new rent of 
      $314.19 was first collected in January of 1984.  Under the last 19 
      months of that lease, then, there was a monthly overcharge of $4.71.  
      The lawful rent under the next lease was 9% greater than $309.48, or 
      $337.33, which is $5.14 less than the rent charged and collected for 
      that 24-month period.  And the lawful rent under the final period 
      covered by the order again embodies a 9% increase, plus a $15.00 low- 
      rent allowance for rents of less than $350.00 as of September 30, 1986, 
      making the rent $381.50 but limited to the $373.29 actually charged.

      The Commissioner will treble the above overcharges for refund to the 
      tenant.  This is in spite of the fact that petitioner bought the 
      premises after the unwarranted improvement-based increase, which caused 
      the overcharge herein, had already been imposed.  Petitioner 
      acknowledges that when it assumed ownership, the complainant's rent was 
      $314.19, although the effective lease provided for $309.48.  The 
      tenant's complaint had already been filed, and the owner was thus on 
      notice to find out the reason for the discrepancy.  In trying to do so, 
      finally, the owner had to realize that its records contained no signed 
      tenant consent for the increase in question, leading strongly to the 
      conclusion that that increase was invalid; yet the owner has not seen 
      fit to adjust the rent.  In these circumstances the owner has not shown 
      nonwillfulness, and will therefore have treble damages assessed against 
      it.
      Based on the foregoing, a total overcharge of $638.55 occurred from 
      January, 1984 through July of 1987, including treble damages.  It is 
      noted that no overcharge occurred in the period from August 1, 1987 to 
      July 31, 1989, when the owner charged the correct lawful stabilization 


      CG110087RT

      rent of $373.29.

      The Commissioner has determined in this Order and Opinion that the owner 
      collected overcharges of $638.55.  Not in excess of twenty percent per 
      month of the overcharge may be offset against any rent thereafter due 
      the owner.  Where the tenant credits the overcharge, the tenant may add 
      to the overcharge, interest at the rate payable on a judgment pursuant 
      to section 5004 of the Civil Practice Law and Rules, from the issuance 
      date of the Rent Administrator's order to the issuance date of the 
      Commissioner's order.

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

      ORDERED, that this petition be, and the same hereby is, granted, and 
      that the order of the Rent Administrator be, and the same hereby is, 
      modified in accordance with this order and opinion.  The lawful rent was 
      $373.29 on June 1, 1988.


      ISSUED:



                                                                  
                                      JOSEPH A. D'AGOSTA
                                      Deputy Commissioner





    

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