DE310188RO
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.DE310188RO
: DRO DOCKET NO.AF310318
LUTHER HARMAN
PETITIONER : Subtenant:Christopher Wolfe
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On May 25, 1989, the above-named petitioner-prime tenant filed
a Petition for Administrative Review against an order issued on
April 25, 1989, by the Rent Administrator, 92-31 Union Hall Street,
Jamaica, New York, concerning the housing accommodations known as
301 West 45th Street, New York, Apartment No. 4C wherein the
Administrator determined that the prime tenant had overcharged the
subtenant and directed the prime tenant to refund $3,218.06 to the
subtenant.
The Administrative Appeal is being determined pursuant to the
provisions of Section 2525.6 of the Rent Stabilization Code.
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 issue raised by the administrative appeal.
This proceeding was commenced when the subtenant filed a
complaint of rent overcharge, alleging that the prime tenant had
demanded rent in excess of the legal rent. The subtenant stated
that he had taken occupancy of the subject apartment on May 24, 1985
and had resided therein through August 1985.
In answer to the complaint, the prime tenant stated that the
subtenant had been informed prior to rental of the premises that a
premium was being charged to cover telephone and cable TV usage as
well as the cost of repairing any damage to the prime tenant's
furnishings and that the complainant had agreed to the additional
charge. Upon the termination of the subtenancy, various amounts
were spent to repair a damaged piece and to clean the apartment.
These amounts had been subtracted from the total overage collected
and the difference had been returned to and accepted by the
subtenant.
DE310188RO
In the order here under review, the Administrator determined
that the legal rent chargeable to the subtenant was $523.96 (base
rent - $476.33 + 10% allowance for furnishings) and found a total
overcharge of $3,218.06, inclusive of treble damages and a credit of
$396.22, previously returned to the subtenant by the prime tenant.
In his appeal, the prime tenant requests that the order be
reversed and bases his appeal on the cost of repairing damages
inflicted by the subtenant on the prime tenant's furnishings.
When the subtenant vacated, the prime tenant incurred costs to
repair a piece of furniture and to clean the apartment. After
subtracting these costs from the total excess collected, the
remainder, $396.22, was returned to the subtenantby a check which
stated that it was payment in full for all claims against the prime
tenant. Accordingly, the subtenant acceptedthe statement when he
endorsed and cashed the check and therefore the overcharge complaint
must be dismissed.
Although afforded the opportunity to do so, the subtenant did
not reply to the petition on the merits.
The Commissioner is of the opinion that this petition should be
denied.
Section 2525.6 provides in pertinent part that the rental
charged to the subtenant by the tenant shall not exceed the legal
regulated rent plus no more than a ten percent surcharge payable to
the tenant if the housing accommodation is sublet fully furnished.
Where a tenant violates these provisions, the subtenant shall be
entitled to treble damages.
In the instant case, the Administrator correctly found that the
legal rent chargeable to the subtenant was $523.96 (base rent of
$476.33 + 10%, $47.63). With regard to any claimed damages, the
prime tenant may seek recovery for these costs in a court of
competent jurisdiction.
With respect to the tenant's cashing the refund check, it
is noted that pursuant to Code Section 2520.13, an agreement by a
tenant to waive any benefit of the Rent Stabilization Law or Code is
void; provided, however, that based upon a negotiated settlement
between the parties and with the approval of the DHCR, or a court of
competent jurisdiction where a tenant is represented by counsel, a
tenant may withdraw any complaint pending before the DHCR.
Accordingly, the Commissioner finds that the prime tenant had no
basis pursuant to the Rent Stabilization Code to charge more tnan
the base rent plus 10%.
The Commissioner has determined in this Order and Opinion that
the owner collected overcharges of $3,218.06. 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 subtenant
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.
DE310188RO
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.
ISSUED
JOSEPH A. D'AGOSTA
Deputy Commissioner
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