DD 610221 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



          ----------------------------------X
          IN THE MATTER OF THE ADMINISTRATIVE     ADMINISTRATIVE REVIEW     
          APPEAL OF                               DOCKET NO.:  DD 610221 RO

                     ARTHA MANAGEMENT,
                                                  DRO DOCKET NO.: AG 610536 R
                                                  TENANT:  CHRISTOPHER LAIDLAW
                                  PETITIONER
          ----------------------------------X                                   


            ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW


          On April 13, 1989 the above-named petitioner filed a Petition for 
          Administrative Review against an order issued on March 28, 1989, by 
          a Rent Administrator, concerning the housing accommodations known 
          as 2444 Marion Avenue, Bronx, New York, Apartment 4F, wherein the 
          Rent Administrator determined that the owner had overcharged the 
          tenant.

          The issue herein is whether the Rent Administrator's order was 
          warranted.

          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 on July 18, 1986 by the 
          filing of a rent overcharge complaint by the tenant.  The complaint 
          was served on the former owner who responded that it had since sold 
          the building; and stated that the new owner was Marion Avenue 
          Associates, which was managed by Artha Management, who is the 
          petitioner in this proceeding.  Subsequently a copy of the 
          complaint as well as all other documents were sent to the current 
          owner.

          In response to a DHCR notice informing the owner of the possibility 
          of treble damages, the current owner replied that since the 
          overcharges occurred in June, 1985 and were entirely due to the 
          actions of the former owner, it was unjust to penalize him with 
          treble damages.  The owner stated that it was willing to correct 
          the overcharges caused by the former owner, but that to impose 
          treble damages without proof of its own willfulness was improper.













          DD 610221 RO

          In Order Number AG 610536-R, the Rent Administrator determined that 
          the tenant had been overcharged in the amount of $19,033.84, 
          including treble damages, and directed the owner to refund such 
          overcharge to the tenant.

          In this petition, the owner claims that the treble damages penalty 
          is unjust because, "in a small way", the owner was as much a victim 
          of the former owner as the tenant.  The petitioner claims that it 
          was never informed of the instant proceeding by the former owner 
          and that it did not willfully overcharge the tenant.

          The petitioner, who in this case is the managing agent and is thus 
          equally liable with the owner, disavows any connection with the 
          actions of the former owner and, while conceding that the tenant is 
          entitled to a full refund, believes it is unjust to be penalized as 
          if it had actually intended to overcharge.

          The tenant did not answer the petition.

          The Commissioner is of the considered 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 overcharge 
          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.

          In the instant case, the current owner was apprised of this 
          proceeding by the Administrator prior to the issuance of the order, 
          as well as the possibility of treble damages, yet submitted no 
          evidence to refute the presumption that the overcharges were 
          willful.

          The owner has failed to document that it ceased collection of the 
          overcharges or made a refund to the tenant after being notified of 
          the tenant's complaint.  Although the owner claims otherwise, the 
          record offers simply no evidence to show that the treble damages 
          penalty was improper.

          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 
          tenant in the same manner as a judgment or not in excess of twenty 
          percent thereof per month may be offset against any rent thereafter 
          due the owner.
          THEREFORE, in accordance with the Rent Stabilization Law and Code, 
          it is

          ORDERED, that the owner's petition be, and the same hereby is, 






          DD 610221 RO

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






          ISSUED:

                                                  ------------------------
                                                  JOSEPH A. D'AGOSTA
                                                  Acting Deputy Commissioner
           
             
                                             






    

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