EG 410037 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. EG 410037 RO

                                          :  DISTRICT RENT OFFICE
                                             DOCKET NO. ZAD 410449 R
           Susan Golenbock,                 
                                             SUB TENANT: Colleen Adams        
                  
                            PETITIONER    : 
      ------------------------------------X                             

           ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW


      On July 2, 1990, the above-named petitioner timely filed a Petition for 
      Administrative Review against an order issued on May 29, 1990, by the 
      Rent Administrator, 92-31 Union Hall Street, Jamaica, New York, 
      concerning the housing accommodations known as 417 East 57th Street, 
      New York, New York, Apartment No. 31A, wherein the Administrator 
      determined that an 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 issue 
      raised by the administrative appeal.  

      This proceeding was originally commenced on April 17, 1986 when the 
      tenant filed a complaint of rent overcharge.  The tenant stated that she 
      was a subtenant and that she had first subleased the subject apartment 
      on September 1, 1981.

      A copy of the complaint was sent to the prime tenant.

      In response, the prime tenant asserted that the subtenant had 
      effectively waived all objection to the rent by failing to timely object 
      after receipt of either the DC-2 notice or the RR2 Annual Registration 
      form.  The prime tenant further asserted that she had assisted the 
      subtenant in securing a prime lease and that in return for such 
      assistance the subtenant had agreed to release the prime tenant from all 
      claims.  Subsequently the prime tenant claimed to have provided special 
      benefits and services to the subtenant.

      In reply, the subtenant, in denying the prime tenant's allegations, 
      stated that she never saw the above-cited documents until after the 
      initiation of this proceeding and that she never agreed to execute a 
      general release.  The subtenant requested that treble damages be 
      assessed on the overcharge.



      In the order here under review, the Administrator established the lawful 
      stabilization rent and directed the prime tenant to refund $25,522.81 







          EG 410037 RO

      inclusive of excess security and treble damages.

      In her appeal, the prime tenant contends that the order is incorrect and 
      should be reversed because

           1)   The Administrator neglected to include allowances 
                for various services paid for by the prime tenant 
                without additional cost to the subtenant.  These 
                include cable television, gas, electricity, cleaning 
                services, $8 fuel pass-along, and an allowance for 
                improvements made to the apartment by the prime 
                tenant;

           2)   Excess security should be deducted from the refund 
                ordered because the security deposit plus interest 
                was returned to the tenant;

           3)   Treble damages are not warranted because there was 
                no willful overcharge.  The negotiated rent included 
                so many additional benefits and services that the 
                prime tenant and the subtenant believed that a 
                higher rent could be charged;

           4)   In reliance on the subtenant's promise to sign a 
                general release, the prime tenant had expended 
                considerable time and energy in securing a prime 
                lease for the subtenant.  It would be inequitable to 
                permit the subtenant to benefit while relieving her 
                of the obligations to honor her promise.

      In response to the petition, the subtenant contends that the petition is 
      not timely filed and that none of the major points raised by the 
      petitioner has merit:

      1)The petitioner's assertions regarding the computation of the legal 
      rent are incorrect.  Since there were no special benefits or services 
      provided (the petitioner has offered no hard evidence to show that there 
      were), no adjustment to the rent is required.  Moreover, the argument 
      about extra or special services, raised only after the finding of 
      willful overcharge was made, is nothing more than an afterthought.

      2)Treble damages are warranted because the overcharge was willful.

      3)The petitioner's request for a general release is evidence of the 
      willfulness of the overcharge.  The tenant did not agree to give the 
      prime tenant a release and is not "estopped" from recovering her rent 
      overcharge.

      In addition, the subtenant contends that the refund award should be 
      increased to include overcharges which were collected from September 1, 
      1981 through March 31, 1984 and interest.

      The Commissioner is of the opinion that this petition should be denied.

      With regard to the petitioner's claim for additional rent for special 
      benefits and services, it is noted that the Administrator credited the 
      prime tenant with a 10 percent surcharge, the maximum permissible for a 
      fully furnished sublet under Section 2525.6(b) of the Code.  With regard 


          EG 410037 RO

      to the prime tenant's contention that gas and electricity were provided 
      to the subtenant, it is noted that such items were included in the prime 
      tenant's lease with the owner.  With regard to the prime tenant's 
      contention that she paid an $8.00 fuel pass-along, it is noted that the 
      prime tenant has submitted no evidence of this and that such charge was 
      not lawful during the period of time the sublet occurred.  If the prime 
      tenant did pay such $8.00 charge during the sublet period, her proper 
      recourse is an action against the owner of the subject premises.

      Pursuant to Section 2525.6(b), where a tenant violates the provisions of 
      the section, the subtenant is entitled to treble damages.  Accordingly, 
      the Commissioner finds that the Administrator correctly assessed treble 
      damages on the overcharges.

      The Commissioner notes that under Section 2520.6(r) of the Code, a 
      subtenant is entitled to all of the benefits of and is subject to all of 
      the obligations of the code.  Pursuant to Section 2520.13 an agreement 
      to waive the benefit of any provision of the Rent Stabilization Law or 
      the Code is void.  Accordingly, even if the subtenant had agreed to sign 
      a general release, such release would be void.

      The prime tenant has presented no hard evidence of having tendered a 
      refund including any security to the subtenant.  Therefore the amount to 
      be refunded remains as directed by the Administrator.

      With regard to the subtenant's request for an additional refund, it is 
      noted that the subtenant did not file her own PAR; the request is 
      denied.  Further the evidence of record shows that the prime tenant's 
      PAR was timely filed contrary to the subtenant's contention that it was 
      untimely.

      This order may, upon the expiration of the period in which the prime 
      tenant 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.

      THEREFORE, in accordance with the Rent Stabilization Law and Code, it is

      ORDERED, that this petition 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
                                      Acting Deputy Commissioner






    

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