EG 410037 RO
STATE OF NEW YORK
DIVISION OF HOUSING AND COMMUNITY RENEWAL
OFFICE OF RENT ADMINISTRATION
92-31 UNION HALL STREET
JAMAICA, NEW YORK 11433
IN THE MATTER OF THE ADMINISTRATIVE : ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO. EG 410037 RO
: DISTRICT RENT OFFICE
DOCKET NO. ZAD 410449 R
SUB TENANT: Colleen Adams
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
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
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
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
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,
JOSEPH A. D'AGOSTA
Acting Deputy Commissioner