DK 710181 RT
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 APPEAL
APPEAL OF DOCKET NO. DK 710181 RT
STEVEN KOSINER, DISTRICT RENT ADMINISTRATOR'S
DOCKET NO. DF 710172 R
SUBTENANT: BARRY FEERST
PETITIONER
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ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
IN PART
On November 21, 1989 the above-named prime tenant filed a
petition for administrative review of an order issued on October
18, 1989 by the District Rent Administrator concerning housing
accommodations known as Apartment 317, 630 Shore Road, Long
Beach, New York wherein the Rent Administrator determined that an
overcharge had occurred.
The Commissioner notes that this case inadvertently was docketed
as an "RT", which represents a tenant's petition. It should have
been docketed as an "RO", which represents a landlord's petition.
The Commissioner has reviewed all of the evidence in the record
and has carefully considered that portion of the record
concerning the issues raised in the petition for review.
This proceeding was commenced on June 14, 1989 upon the filing of
a general complaint of rent overcharge by the subtenant. The
subtenant stated, among other things, that he took occupancy of
the subject apartment on April 15, 1987 with a written lease.
The subtenant submitted an informal signed agreement between the
parties documenting the rental paid for the sublease.
The prime tenant answered that no written lease existed between
the parties. It was alleged that the subtenant vacated the
subject apartment without the agreed-to written notice and that
the prime tenant lost two months of rental income.
In the order here under review the Administrator determined that
an overcharge of $3,654.18 including treble damages occurred over
the term of the subtenant's occupancy of the subject apartment
from April 1, 1987 to May 31, 1988.
In his petition for administrative review, the prime tenant
alleges that the subtenant's occupancy began April 15, 1987 and
DK 710181 RT
not April 1, 1987 as determined by the Administrator. Second, he
alleges that the subtenant was responsible for the rent for June,
1988 but the subtenant vacated a month earlier without notice.
The prime tenant asserts the he should be granted a credit in the
Administrator's calculations for this one month because he lost
rental income. Third, the prime tenant asks that the imposition
of treble damages be reconsidered. Finally, it is alleged that
the subtenant was aware of the overcharge and agreed to the rent
anyway. The prime tenant asserts that the subtenant "lured" him
into this agreement and that the subtenant (an attorney) drafted
and signed the informal agreement.
After careful consideration, the Commissioner is of the opinion
that this petition should be granted in part.
First, the prime tenant's claim that the subtenant vacated the
premises without notice and in violation of an informal
contractual agreement will not be considered by the Commissioner.
The Administrator correctly determined the overcharges for the
period of actual occupancy only. However, this order is issued
without prejudice to the right of the prime tenant to seek
damages based upon the subtenant's early vacatur, if warranted,
in a court of competent jurisdiction.
Second, the Commissioner is of the opinion that the Administrator
correctly assessed treble damages. Section 2506.1(a)(1) of the
Tenant Protection Regulations states that if it is determined
that an overcharge has occurred the Administrator shall assess
treble damages. The only exception to this rule is if the
landlord establishes that the overcharges were neither willful
nor the result of negligence. The record is totally devoid of
any evidence showing a lack of wilfulness by the prime tenant.
Third, the prime tenant asserts that he was "lured" into this
rental agreement by the subtenant. Administrative review is
limited to facts or evidence before a Rent Administrator as
raised in the petition for review. Because the prime tenant
presents this allegation for the first time in his appeal, it
will not be considered. The Commissioner notes that even if the
allegation were to be considered, it would be without merit. The
fact that the parties to the informal rental agreement had
unequal expertise would not have been determinative of the issue
of overcharge or of treble damages. The record would still fail
to sustain a finding of a lack of wilfullness, and the record
would certainly not warrant a finding that the overcharge was not
attributable to the prime tenant's negligence.
Finally, the prime tenant asserts that the subtenant's occupancy
began on April 15, 1987 and not April 1, 1987. The tenant, in
his original complaint acknowledged that he took occupancy on
April 15, 1987. The Administrator erred in the order by
beginning the examination of the overcharge from April 1, 1987.
Accordingly, the overcharges should have been $3,377.36 and not
$3,654.18.
THEREFORE, in accordance with the Emergency Tenant Protection Act
and the Tenant Protection Regulations, it is
ORDERED, that this petition be, and the same hereby is, granted
DK 710181 RT
in part, and the Administrator's order be, and the same hereby
is, modified in accordance with this order and opinion; and it is
FURTHER ORDERED, that the prime tenant, Steven Kosiner, shall
immediately refund to the subtenant all amounts not yet refunded
representing overcharges and penalties; and it is
FURTHER ORDERED, that if the prime tenant, Steven Kosiner, has
not refunded the stated amounts, upon the expiration of the
period for seeking judicial review of this order pursuant to
Article 78 of the Civil Practice Law and Rules, the subtenant who
has vacated the premises may file and enforce a certified copy of
this order as a judgment for the amount of $3,377.36, as against
Steven Kosiner.
ISSUED:
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ELLIOT SANDER
Deputy Commissioner
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