Docket Number: EI710096-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
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IN THE MATTER OF THE ADMINISTRATIVE : ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO. EI 710096-RO
:
BECHTOLDT CORP., DISTRICT RENT ADMINISTRATOR'S
DOCKET NO. ED 710271-R
PETITIONER :
------------------------------------X TENANTS: DONNA AND KEVIN
BISHOP
ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On September 7, 1990, the above-named landlord filed a petition for
administrative review of an order issued on August 3, 1990 by a
District Rent Administrator concerning the housing accommodations
known as Apartment 2M, 599 Front Street, Hempstead, New York,
wherein the Administrator determined that a rent overcharge had
occurred.
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 petition for review.
This proceeding was commenced on April 26, 1990 upon the filing of a
general complaint of rent overcharge by the tenants. The tenants
stated that they had not been presented with a rent history of the
subject apartment.
The Division of Housing and Community Renewal (DHCR) served the
landlord with a copy of the tenants' complaint. On June 13, 1990
the landlord's answer was received. The landlord alleged that no
overcharges occurred and submitted all relevant leases with its
answer.
In the order here under review, the Administrator established the
lawful stabilization rent of $783.96 as of May 1, 1990 through April
30, 1991. Further, the Administrator found overcharges of $437.66
including interest plus a penalty of $250.00 for the landlord's
failure to inform the complainant of the prior tenant's rent, and
directed the landlord to refund to the tenant a total of $687.66.
In its petition for administrative review the landlord alleges that
the imposition of the penalty was unfair and that it routinely
advises tenant of the prior rent as a matter of company policy.
Further, the landlord alleges that the Administrator's calculations
were incorrect and no overcharges occurred.
After careful consideration, the Commissioner is of the opinion that
this petition should be denied.
First, the Administrator correctly calculated the legal
stabilization rent. Section 2502.5(c)(6) of the Tenant Protection
Regulations is determinative in this instance. The lease
Docket Number: EI710096-RO
immediately preceding the complainant's initial lease was for a one
year renewal period. This one-year term was not completed by the
prior tenant, and the complainant occupied the subject premises
prior to the date upon which the prior lease would have expired.
The landlord incorrectly used this unexpired rental rate ($671.96)
as the basis for computing the rent adjustment. The Administrator,
on the other hand, correctly used the rent amount ($649.24) that
would be permissible if the last lease with the prior tenant had
been for a term ending on the date such prior tenant vacated. In
accordance with DHCR policy and precedent, in housing accommodations
subject to the Tenant Protection Regulations, a landlord may not
collect any guideline increase for a renewal lease of less than one
year. Therefore, an overcharge occurred and was correctly
calculated by the Administrator.
Second, the Administrator was well within her discretion in
assessing a $250.00 penalty upon the landlord. Section 2506.2 of
the Tenant Protection Regulations is determinative of this matter.
It states in part that if it is found that the landlord knowingly
engaged in prohibited acts under the statute, it may be assessed a
penalty of up to $250.00 for each such act. The Administrator in
her initial notice to the landlord included the complaint, which
alleged a failure to provide a lease history, and an advisory that
penalties might be assessed. The landlord submitted no
documentation (e.g. affidavits, initialed agreements etc.) to
contradict the tenant's allegation. Given the lack of evidence in
the record, the Commissioner shall not overturn the determination of
the Administrator.
THEREFORE, in accordance with the Emergency Tenant Protection Act
and Tenant Protection Regulations, it is
ORDERED, that this petition be, and the same hereby is, denied, and
that the District Rent Administrator's order be, and the same
hereby is, affirmed; and it is
FURTHER ORDERED, that, if the landlord has not complied with this
Order and Opinion, upon the expiration of the period in which to
institute a proceeding pursuant to Article 78 of the Civil Practice
Law and Rules for judicial review of this order, this order may be
filed and enforced by the tenant in the same manner as a judgment
against the landlord in the amount of $687.66, or the tenant may
offset against any rent thereafter due the landlord, not in excess
of twenty percent of $687.66 per month until the amount of $687,66
is fully repaid.
ISSUED:
ELLIOT SANDER
Deputy Commissioner
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