ED 310001 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

      ------------------------------------X 
      IN THE MATTER OF THE ADMINISTRATIVE :  ADMINISTRATIVE REVIEW
      APPEAL OF                              DOCKET NO. ED 310001 RO

                                          :  DISTRICT RENT OFFICE
                                             DOCKET NO. ZBF 310290-R
           Sylvia Kuper,                     
                                             TENANT: Arthur Matwa             
              
                            PETITIONER    : 
      ------------------------------------X                             

          ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
                                     IN PART


      On April 4, 1990, the above-named petitioner-owner filed a Petition for 
      Administrative Review against an order issued on March 28, 1990, by the 
      Rent Administrator, Gertz Plaza, Jamaica, New York, concerning the 
      housing accommodations known as 169-171 Silverlake Road, Staten Island,  
      New York, Apartment No. 1L, wherein the Rent 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 
      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 originally commenced by the filing in June 1987 of 
      a rent overcharge complaint by the tenant who stated in substance that
      he believed that he was being overcharged as the prior tenant had been 
      paying only $425 per month whereas he was charged $750.00 per month upon 
      commencing occupancy on December 1, 1985.  The tenant further stated 
      that he had received a new refrigerator, stove and dishwasher.  
      Subsequently the tenant advised that the prior tenant's rent of $425.00 
      had included a garage which the current tenant does not have.



      The owner was served with a copy of the tenant's complaint and directed 
      to submit a copy of the prior tenant's lease and copies of cancelled 












          ED 310001 RO

      checks  and bills for any improvements made in the subject apartment.

      In response, the owner did not submit a copy of the prior lease but 
      stated that she made expenditures totalling $12,400 when the subject 
      apartment was vacant including a new refrigerator, stove, dishwasher, 
      new kitchen cabinets, sink, faucet, six new ceiling light fixtures, new 
      bathroom with sheetrock, tiles and toilet, scraping and shellacking of 
      floors, new venetian blinds, sheetrock on all walls, repainting of 
      walls, installation of room dividers and new window gates.  The owner 
      submitted copies of bills for the kitchen cabinets, sink and faucet, the 
      dishwasher, refrigerator and stove.  Two bills from Eduardo Kuper 
      listing amount of $5,007.84 and $5,000 were also submitted but no 
      cancelled checks were submitted.

      In Order Number ZBF 310290-R, the Rent Administrator established the 
      lawful stabilization rent as $427.50 effective December 1, 1985, 
      determined that the tenant had been overcharged and directed a refund to 
      the tenant of $44,565.12 including treble damages on that portion of the 
      overcharge collected on and after April 1, 1984.  No allowance for any 
      of the improvements was given in the Rent Administrator's order based on 
      a finding that the owner submitted bills without matching cancelled 
      checks, checks without matching bills, no apartment number on bills and 
      bills with work performed by the owner's relative.

      In this petition, the owner alleges in substance that she was entitled 
      to a rent increase for the improvements made in the subject apartment so 
      that no rent overcharge should have been found and that in any event the 
      imposition of treble damages was not warranted because any overcharges 
      resulting from a failure to document improvements cannot be 
      characterized as willful.  In addition the owner contends that the prior 
      tenant Paula Ramos' last rent was $444.00 and that the initial rent of 
      the tenant herein should be based on this amount.  In support of this 
      contention, the owner submitted a copy of tenant Ramos' lease dated July 
      1, 1984 to June 30, 1986 at a rental of $444.00 per month including a 
      two car garage.

      With regard to bills and cancelled checks, the owner stated in substance 
      that $5,000 was paid to contractor Eduardo Kuper (the owner's father) to 
      do the following:

      1)   Remove existing material in apartment to prepare for renovation

      2)   Purchase and install window gates in the master bedroom

      3)   Purchase and install custom venetian blinds.

      4)   Restore all floors for entire apartment

      5)   Purchase and install interior doors and room dividers.

      In support of the $5,000 payment made to her father, the owner submitted 
      copies of five cancelled checks of $1,000 each to her father dated from 






          ED 310001 RO

      September 1985 through January 1986 and a copy of a statement and bill 
      detailing the work dated November 1, 1985.

      The owner also stated that Eduardo Kuper at her request paid J & K 
      Distributors $5,007.84 in cash to do the following work in the subject 
      apartment

      1)   Tape and hang sheetrock

      2)   Painting of entire apartment

      3)   Tile the bathroom wall

      4)   Miscellaneous electric wiring and installation of new fixtures.

      In support of the $5,007.84 cash payment to J & K Distributors, the 
      owner stated that payment was first made to Eduardo Kuper who then paid 
      J & K Distributors.  To show payment to Mr. Kuper, the owner submitted 
      copies of two checks totalling $1300.00 made out to Mr. Kuper and dated 
      July 18, 1985 and August 23, 1985 and copies of bank withdrawal 
      statements totalling $3500 to the owner herein from September 1985 to 
      December 1985.  In addition a copy of a paid bill totalling $5007.84 
      from J & K Distributors, was submitted.

      Further the owner submitted copies of the bills for a new refrigerator, 
      dishwasher and stove totalling $1,609.67 and copies of bills totalling 
      approximately $800.00 for miscellaneous items including kitchen 
      cabinets, sink and faucet.

      In response to the owner's petition, the tenant alleges in substance 
      that since the prior tenant was said to have vacated about October 31, 
      1985, bills and cancelled checks prior to October 31, 1985 should not be 
      considered; that the checks given to the owner's father could have been 
      used for anything; that the following items were done by the owner - new 
      sink, faucet, kitchen cabinet under sink; new refrigerator, new 
      dishwasher, new blinds, new plumbing under kitchen sink, new blinds 
      throughout apartment; painting of subject apartment, wooden floors 
      throughout apartment were sanded, stained and polished.

      The tenant stated that the following items claimed by the owner were not 
      done - no new gas line,  no new doors or room dividers throughout 
      apartment; no new light switches or fixtures; no new window gates; no 
      new steam valves and no new door knobs, no repair of windows and no new 
      tiles, piping and faucets in the bathroom.  In addition the tenant 
      stated that his stove is an "imperial" and not the "rose" stove listed 
      by the owner.
      In a response to the tenant's answer including a supplemental affidavit 
      to her petition, the owner stated in substance that the prior tenant 
      vacated in October 1985 as result of a non payment proceeding and did 
      not pay rent for September and October 1985, that "rose" is the stove 
      model type and not the color and that the tenant actually received an 
      "imperial rose style stove", that new doors were installed in the 












          ED 310001 RO

      kitchen and second bedroom and that other improvements were done as the 
      owner claimed.  Further the owner contends that the subject premises 169 
      Silver Lake Road and 171 Silver Lake Road have been listed as two three 
      family houses and the owner was not aware such premises had to be 
      registered as rent stabilized until a decision was reached on January 
      19, 1988 under docket ZAK 310003-UC that the premises were part of a 
      horizontal multiple dwelling subject to the Rent Stabilization Law and 
      Code and the subject apartment has now been registered in accordance 
      with such decision.

      The Commissioner is of the opinion that this petition should be granted 
      in part.

      Section 2522.4 of the Rent Stabilization Code permits a rent increase 
      equal to one-fortieth the cost of new equipment.  Tenant consent is not 
      required if the new equipment is installed during a vacancy period.

      In the instant case the evidence of record including statements made by 
      the tenant indicate that a new stove, refrigerator, dishwasher, kitchen 
      cabinet, sink and sink faucet were installed in the subject apartment 
      immediately prior to occupancy by the tenant herein.  The owner has 
      submitted bills showing a total cost of $1866.66 for these items - 
      $1609.67 for the refrigerator, dishwasher and stove and $256.99 for the 
      kitchen cabinet, sink and faucet.  Further, the record shows that these 
      items were ordered or installed during a vacancy period in which tenant 
      consent was not required.  Accordingly the owner is entitled to a rent 
      increase of $46.67 for such installation.

      With regard to the other items submitted by the owner it is noted that 
      they are either consider normal repairs and maintenance for which no 
      rent increase is warranted such as the apartment painting or the owner 
      has failed to sufficiently document the payments made for such items.  
      In addition the tenant has questioned the actual installation of certain 
      items.

      With regard to the owner's contention that the last rent of the prior 
      tenant - $444.00 - should have been used to calculate the initial rent 
      of the tenant herein, it is noted that the owner failed to submit a copy 
      of the prior tenant's last lease in the proceeding before the Rent 
      Administrator although afforded an opportunity to do so.  Such 
      submission cannot be considered for the first time on appeal since this 
      is not a de novo proceeding.  Moreover the last rent of the prior tenant 
      included a garage which the tenant herein does not have.

      Accordingly, the April 1, 1984 registered rent of $375.00 was correctly 
      used by the Rent Administrator to determine the initial rent of the 
      tenant herein.

      With regard to the owner's contention that the imposition of treble 
      damages was not warranted, Section 2526.1 of the Rent Stabilization Code 
      provides in pertinent part that any owner who is found by the DHCR to 
      have collected a rent or other consideration in excess of the legal 






          ED 310001 RO

      regulated rent on and after April 1, 1984 shall be ordered to pay to the 
      tenant a penalty equal to three times the amount of such excess.  If the 
      owner establishes by a preponderance of the evidence that the overcharge 
      was not willful, the DHCR shall establish the penalty as the amount of 
      the overcharge plus interest from the date of the first overcharge on or 
      after April 1, 1984.

      In the instant case, the evidence of record discloses that the 
      overcharge was primarily due to the owner's failure to sufficiently 
      document the cost of improvements made in the subject apartment.  The 
      Commissioner is of the opinion that the imposition of treble damages for 
      this type of overcharge is not warranted.

      Taking the above factors into account, the Commissioner has recalculated 
      the lawful stabilization rents and amount of rent overcharge for the 
      subject apartment, including interest on the overcharge occurring on and 
      after April 1, 1984.  The lawful stabilization rents and amount of rent 
      overcharge are set forth on the amended rent calculation chart attached 
      hereto and made a part hereof.

      Because this determination concerns lawful rents only through November 
      30, 1989, the owner is cautioned to adjust subsequent rents to an amount 
      no greater than that determined by this order plus any lawful increases, 
      and to register any adjusted rents with this order and opinion being 
      given as the explanation for the adjustment.

      This order may, upon the expiration of the period in which the owner may 
      institute a proceeding pursuant to Article 78 of the Civil Practice Law 
      and Rules, be filed and enforced in the same manner as a judgment or not 
      in excess of twenty percent per month thereof may be offset against any 
      rent thereafter due the owner.

      If the owner has already complied with the Rent Administrator's order 
      and there are arrears due to the owner as a result of the instant 
      determination, the tenant shall be permitted to pay off the arrears in 
      twenty four equal monthly installments.  Should the tenant vacate after 
      the issuance of this order or have already vacated, said arrears shall 
      be payable immediately.

      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, granted in part, and, that the order of the Rent 
      Administrator be, and the same hereby is, modified in accordance with 
      this order and opinion.  The lawful stabilization rents and the amount 
      of the rent overcharge are established on the attached chart which is 
      fully made a part of this order.  The amount of the rent overcharge 
      through November 30, 1989 is $15,539.08.














          ED 310001 RO

      ISSUED:



                                                                    
                                      JOSEPH A. D'AGOSTA
                                      Acting Deputy Commissioner
    

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