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.: CG410032RO
333 C.P.W. Owners Corp. DRO DOCKET NO.: 050359
TENANT: Rochelle Solvin
PETITIONER
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ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW IN PART
On July 15, 1988, the above-named owner filed a Petition for
Administrative Review against an order issued on June 24, 1988, by a
Rent Administrator, concerning the housing accommodations known as
Apartment 73 at 333 Central Park West in New York City, wherein the Rent
Administrator determined that the owner had overcharged the tenant.
After the tenant had filed her overcharge complaint herein, the
Administrator requested from the owner, documentation of the rental
history of the accommodations, which the owner provided. Among that
documentation were: copies of the tenant's first lease stating a
monthly rental of $731.64, and of her second lease, executed in April of
1980 for a three-year term to commence on July 1, bearing on page 1 a
rental amount of $842.39, but providing in a rider that "[t]he above
figures are based on the July 1, 1979 Guidelines [issued by the Rent
Guidelines Board]. The actual rental ... will be based on the July 1,
1980 Guidelines when ... issued"; and a copy of a lease-renewal form
dated 2/15/83, listing the current rent, for the lease expiring on
6/30/83, as $857.03.
In the ensuing order, here appealed, the Administrator found that
the rent charged under the last-mentioned lease had been $842.39, which
became the lawful rent for that period because "[w]here the actual rent
charged is less than the rent with maximum permitted increases, the
lawful stabilization rent is limited to the rent charged." The
Administrator further stated that since the owner had not met its burden
of establishing that the overcharge had not been willful, the overcharge
would be trebled for refunding purposes, as a penalty for said
willfulness. However he only in fact trebled the overcharges collected
from July 1, 1983 through June 30, 1985 (not trebling those collected
from July 1, 1985 through August of 1986).
In appealing that order the owner makes two points. The first is
that in determining the actual and lawful rents under the renewal lease
CG410032RO
the term of which commenced on July 1, 1980, the Administrator "failed
to take into account the Rider attached to the lease dated April 15,
1980" (quoted above), the actual rent thereunder having been $857.03.
The other argument is that because any overcharge herein was inherited
from the prior owner (petitioner having never increased the rent by
more than the percentage allowed in each applicable Guidelines Board
order), there had been no willfulness and therefore no justification for
treble damages herein.
The Commissioner is of the opinion that this petition should be
granted in part.
Petitioner's first assignment of error has merit, as indicated by
the facts related in the second paragraph of this opinion, supra. The
actual rent under the lease in question was not $842.39 but indeed
$857.03. The changes caused by that correction are set forth on the
appended calculation chart, which is hereby incorporated in this Order
and Opinion.
The calculations will continue to include treble damages for the
willfulness found by the Administrator. As many Commissioner's
decisions have made clear, an owner may not automatically continue
collecting rents set by its predecessor in title; rather, if the owner
fails to ensure that the "inherited" rent complies with the legal
rent, it he will be liable to refund the resulting overcharge in
triplicate. In this connection the Commissioner notes that this penalty
cannot be exacted for overcharges collected before April 1, 1984; the
treble damages herein will therefore be adjusted in conformity with that
rule.
The Commissioner has determined that the owner collected
overcharges of $221.57. Upon expiration of the period for seeking
review of this Order and Opinion pursuant to Article Seventy-eight of
the Civil Practice Law and Rules, 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 date of the
Administrator's order to the date of this Commissioner's order. If the
owner has already complied with the Rent Administrator's order and there
are arrears due to the owner as a result of the instant determination,
the tenant shall be permitted to pay off the arrears in twenty-four
equal monthly installments. Should the tenant vacate after the issuance
of this order or have already vacated, said arrears shall be payable
immediately.
THEREFORE, in accordance with the provisions of the Rent Stabilization
Law and Code, it is
CG410032RO
ORDERED, that this petition be, and the same hereby is, granted to the
extent set forth above, the Rent Administrator's order being modified to
the same extent.
ISSUED:
JOSEPH A. D'AGOSTA
Deputy Commissioner
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