Adm. Rev. Docket No.: DB710264RO
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. DB710264RO
MAPLEWOOD MANAGEMENT, INC. :
DISTRICT RENT
ADMINISTRATOR'S
PETITIONER : DOCKET NO.
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TENANTS: DARRYL &
MARY TYLER
ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On February 10, 1987, the above-named petitioner-owner filed a
petition for administrative review of an order issued on January 5,
1987, by the District Rent Administrator, 50 Clinton Street,
Hempstead, New York, concerning the housing accommodations known as
Apt. B10, at 100 Jerusalem Avenue, Hempstead, New York, wherein the
Administrator directed the owner to refund $35.00 it had collected
from the tenants as additional rent and which represented the
owner's out of pocket expenses in connection with filing a
nonpayment proceeding in the District Court.
The Commissioner has reviewed all the evidence in the record and
has carefully considered that portion of the record relevant to the
issues raised by the petition for review.
The issue herein is whether an owner can collect its out of pocket
expenses in connection with a nonpayment proceeding in the absence
of a court order awarding such expenses to said owner.
In the Petition the owner argues, in substance, that although it
might not have properly collected its legal fees from the tenant
absent a court order awarding the same had the proceeding in Court
gone forward, it should be allowed to collect the expenses it
actually incurred in filing that proceeding even though said
proceeding was withdrawn after the tenants had paid the rent. The
owner argues that its out of pocket expenses are different from
legal fees and they should be collectible from the tenants because
the tenants' lease provides for payment of any sums incurred by the
owner by virtue of the tenants' failure to pay the rent on time and
the lease provides for a late payment penalty.
The Commissioner is of the opinion that the Petition should be
denied.
Adm. Rev. Docket No.: DB710264RO
The Commissioner finds that separating court costs from legal fees
in this context is a distinction without a difference. Therefore,
the Commissioner finds that the Administrator correctly directed
the owner to refund the above noted sum. The Commissioner notes
that the sum collected was clearly not a late fee and that the
owner's ability to enforce a provision in the lease calling for the
collection of any sum incurred by the owner by virtue of the
tenants' late payment of rent must be construed as subject to the
provisions of the ETPA and the Tenant Protection Regulations as
interpreted by the Division and the Courts.
The Commissioner notes that the tenants have vacated the subject
premises. The Commissioner further notes that this order may, upon
the expiration of the period in which the owner may institute a
proceeding pursuant to Article Seventy-eight of the Civil Practice
Law and Rules, be filed and enforced by the tenants in the same
manner as a judgment.
THEREFORE, in accordance with all of the applicable laws and
regulations, it is
ORDERED, that this Petition be, and the same hereby is, denied, and
that the order of the Administrator be, and the same hereby is,
affirmed.
ISSUED:
JOSEPH A. D'AGOSTA
Acting Deputy Commissioner
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