STATE OF NEW YORK
                          OFFICE OF RENT ADMINISTRATION
                                   GERTZ PLAZA
                             92-31 UNION HALL STREET
                             JAMAICA, NEW YORK 11433

      APPEAL OF                              DOCKET NO. DI410224RO

                                          :  DISTRICT RENT OFFICE
           Anna Hart,                        DOCKET NO. ZBB410204-R
                                             TENANT: Margaret Ellen McGuire   
                            PETITIONER    : 


      On September 25, 1989, the above-named petitioner-owner filed a Petition 
      for Administrative Review against an order issued on September 11, 1989, 
      by the Rent Administrator, concerning the housing accommodations known 
      as 330 West 101st Street, New York, New York, Apartment No. 2B, wherein 
      the Administrator determined that the owner had overcharged the tenant.

      The Administrative Appeal is being determined pursuant to the provisions 
      of Section 2526.1 of the Rent Stabilization Code.

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

      The Commissioner has reviewed all of the evidence in the record and has 
      carefully considered that portion of the record relevant to the issue 
      raised by the administrative appeal.  

      This proceeding was originally commenced by the filing of a rent 
      overcharge complaint by the tenant in February 1987.  The tenant 
      occupied the subject apartment from July 1, 1986 to July 31, 1988.  The 
      owner was served with a copy of the tenant's complaint.  The owner 
      responded in substance that the subject housing accommodation was not 
      the tenant's primary residence; that it had been rented as a "non- 
      primary residence" apartment since January 1, 1986; that prior to 
      January 1, 1986 the housing accommodation had been rented as a 
      stabilized apartment, but the owner was not able to locate that lease.

      In response to a Division Final Notice of Imposition of Treble Damages 
      on Overcharge, dated May 5, 1989, the owner, by its attorney, contended 
      that there was no intent to willfully overcharge the tenant; that the 
      owner had relied on the opinion of a licensed real estate broker that 
      the housing accommodation would not be subject to the Rent Stabilization 
      Law if leased to one who would not occupy the apartment as a primary 

      By order issued on September 11, 1989, the Administrator established the 
      lawful stabilization rent as $346.13 effective July 1, 1986, determined 


      that the tenant had been overcharged and directed a refund to the tenant 
      of $35,915.25, including treble damages.

      In this petition, the owner reiterates that the overcharge was due to 
      the owner's reliance on the advice of a licensed real estate broker, who 
      informed her that she could charge a higher rent if she rented the 
      housing accommodation to a person who would not use it as their primary 
      residence; that the tenant signed the non-primary residence rider, and 
      wished to use the apartment to pursue her writing career; and that the 
      overcharge was not willful.

      In answer to the owner's petition, the tenant states that she signed the 
      non-primary residence rider under duress; that the owner and her real 
      estate broker informed her that she could not otherwise rent the housing 
      accommodation; that the owner knew she would be residing there; and that 
      she has never held herself out to be a writer.

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

      An examination of the record in this case discloses that rather than 
      evidencing, by its actions, a lack of willfulness, the owner has 
      displayed an intent to evade the Rent Stabilization Law and Code by 
      making nonresidence a precondition to the signing of a lease.

      The owner's practice of requiring the tenant to agree in her lease that 
      she would not occupy the subject apartment as her primary residence 
      constitutes an evasion of the Rent Stabilization Law and Code which only 
      protect tenants who occupy their apartment as their primary residence.  
      So long as a tenant in occupancy has not been found by a court of 
      competent jurisdiction to be a non-primary resident, as required by the 
      Rent Stabilization Law Section 26-504 and Rent Stabilization Code 
      Sections 2520.11 and 2524.4, the tenant is protected by, and the rental 
      is limited by, the Rent Stabilization Law and Code.  The owner's claim 
      of reliance on the advice of a real estate broker does not excuse the 
      owner's failure to comply with the requirements of the Rent 
      Stabilization Law and Code, including charging a lawful stabilized rent.

      Accordingly, the Rent Administrator's order, including the imposition of 
      treble damages, was warranted.

      The owner is directed to reflect the findings and determinations made in 
      this order on all future registration statements, including those for 
      the current year if not already filed, citing this Order as the basis 
      for the change.  Registration statements already on file, however, 
      should not be amended to reflect the findings and determinations made in 
      this order.  The owner is further directed to adjust subsequent rents to 
      an amount no greater than that determined by this order plus any lawful 

      The Commissioner has determined in this Order and Opinion that the owner 
      collected overcharges of $35,915.25.  This Order may, 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, be filed and 
      enforced as a judgment.  Where the tenant files this Order as a 
      judgment, the County Clerk 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.


      A copy of this order and opinion is being sent to the current occupant 
      of the subject aparment.

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

      ORDERED, that this petition for administrative review be, and the same 
      hereby is, denied, and, that the order of the Rent Administrator be, and 
      the same hereby is, affirmed.


                                      JOSEPH A. D'AGOSTA
                                      Deputy Commissioner


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