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.: CG410032RO

                 333 C.P.W. Owners Corp.     DRO DOCKET NO.: 050359

                                             TENANT: Rochelle Solvin          
                           PETITIONER    
      ------------------------------------X                             



      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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