Docket NO. EK 910058-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.: EK 910058-RO
Tenant: Eugenia M. Rogari
Zemo Properties, Inc.
ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW IN
On November 3, 1990, the above named petitioner-landlord filed a
petition for Administrative Review against an order issued on
October 19, 1990, by the Rent Administrator, 55 Church Streeet,
White Plains, New York, concerning housing accommodations known
as Apartment 2D, 140 Grace Church Street, Portchester, New York,
wherein the Rent Administrator determined that there had been an
overcharge and ordered a refund of $10,078.92, including treble
The issues in this appeal are whether treble damages were
imposed for a period exceeding the statutary limit; whether the
landlord had registered the subject premises for the years 1987,
1989 and 1990 when the Administrator's order was issued; and
whether the landlord's failure to register the premises for the
years 1984-87 and 1989 until 1990 was excusable.
The applicable sections of the Tenant Protection Registrations
are Sections 2506.1 and 2509.3.
The Commissioner has reviewed all of the evidence in the record
and has carefully considerd that portion of the record relevant
to the issues raised by the administrative appeal.
* The Administrator's order inadvertently listed the docket
number as CEG-9-1-0279-R.
In the order under appeal, the Rent Administrrator determined
that the premises had not been registered for the years 1987,
1989 and 1990 and the registration forms for 1984, 1985 and 1986
had been filed with the Division on August 13, 1990.
Accordingly, the Administrator found that the landlord could not
raise the rent beyond the April 1, 1984 level, being the last
rent of the prior tenant. Overcharges were computed therefrom
through October 31, 1990, the end of the month during which the
Docket NO. EK 910058-RO
order was issued, and treble charges were imposed for the period
March 1, 1987 through October 31, 1990.
In this petition, the landlord contends that the Rent
Administrator's Order is incorrect and should be modified
because the premises were registered for the years 1987, 1989 and
1990 by the time the order was issued. Proofs of mailing are
attached to the petition. In addition, the landlord alleges that
the late registrations were inadvertant because the landlord had
thought that the property maintenance and cost survey schedules
had been the required registration forms so that the failure to
register had not been willful. Finally, the landlord contends
that the Administrator computed treble damages from a date prior
to the two year period before the tenant's complaint was filed.
(The regulations do not allow treble damages prior to that
In answer to this petiiton, the tenant contends that the order
should be upheld because the landlord's alleged ignorance of the
law, even if true, can not excuse the failure to properly
register the subject premises. However, the tenant did not
dispute the landlord's contentions regarding either the period
for which treble damages were imposed, or that the premises had
been registered for 1987, 1989 and 1990 prior to the issuance of
the Administrator's Order.
The Commissioner is of the opinion that this petition should be
granted in part.
Section 2509.3 (Formerly Section 123) of the Tenant Protection
Regulations (TPR) bars a landlord from collecting any rent in
excess of the legal regulated rent in effect on the date the
housing accommodations became subject to registration where, as
here, the initial registration was not properly filed. Even if
the failure to register was inadvertent, the penalty must be
imposed. The filing of a late registration shall result in the
prospective elimination of this sanction. Division records show
that the 1984,5,6,7 and 1989 registrations were filed August 13,
1990; the 1988 registration was filed July 29, 1988 and the 1990
registration was filed October 24, 1990.
The only date in controversy is that of the 1990 registration.
The landlord has submitted a return receipt for certified mail
showing a June 26, 1990 mailing which was received by the White
Plains Rent Office on June 27, 1990. The landlord alleges that
this mailing contained the 1990 registration. Division records
confirm that the mailing contained registration materials.
Accordingly, Commissioner finds that the landlord should be
deemed to have filed the 1990 registration material on June 27,
1992, rather than on October 25, 1990, the date used by the
Based on the foregoing, the Commissioner hereby finds that the
Administrator correctly froze the rent at the April 1, 1984 level
of $362.00 through August 1990 during which month all
registrations through 1990 had been received.
Section 2506.1 provides that unless a landlord proves an
overcharge was neither willful nor negligent, then the penalty
Docket NO. EK 910058-RO
of treble damages must be imposed. However, the landlord is
correct that the Section also provides that the treble damages
can not be imposed on overcharges collected more than two years
prior to the filing of the tenant's complaint. The record shows
the tenant's complaint was filed on July 3, 1990. Accordingly,
no treble damages should have been imposed on overcharges
collected prior to August 1, 1988.
Base on the foregoing, the overcharges are recomputed as follows:
3/1/85-2/28/86: ($374.00 - $362.00) X 12 mos. = $144.00
3/1/86-2/28/87: ($397.15 - $362.00) X 12 mos. = $421.80
3/1/87-2/28/89: ($417.01 - $362.00) X 17 mos. = $935.17
plus : ($417.01 - $362.00) X 7 mos.
X 3 = $1,155.21
3/1/89-8/31/90: ($454.54 - $362.00) X 18 mos.
X 3 = $4,997.16
Total with treble damages: = $7,653.34
The landlord is hereby directed to immediately refund the amount
$7,653.34 to the tenant. If the landlord fails to do so, the
tenant may recover the penalty found herein by deducting it from
the rent payable to the landlord at a rate not in excess of 20
percent of the amount of the penalty for any one month's rent.
If no such offset has been made, this order may, upon the
expiration of the period in which the landlord may institute a
proceeding pursuant to Article 78 of the Civil Practice Law and
Rules, be filed and enforced by a tenant in the same manner as a
THEREFORE, in accordance with the Emergency Tenant Protection Act
and Regulations, it is
ORDERED, that this petition be, and the same hereby is, granted
in part, and the Rent Administrator's order be, and the same
hereby is, modified in accordance with this Order and Opinion.
Joseph A. D'Agosta
Acting Deputy Commissioner