STATE OF NEW YORK
DIVISION OF HOUSING AND COMMUNITY RENEWAL
OFFICE OF RENT ADMINISTRATION
92-31 UNION HALL STREET
JAMAICA, NEW YORK 11433
IN THE MATTER OF THE ADMINISTRATIVE : ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO. DI410224RO
: DISTRICT RENT OFFICE
Anna Hart, DOCKET NO. ZBB410204-R
TENANT: Margaret Ellen McGuire
ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
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