EF210276RO
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. EF210276RO
Amner Ltd. : DISTRICT RENT OFFICE
DOCKET NO. BI210131R
TENANT: Eniola Koya
PETITIONER :
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ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
IN PART
On June 28, 1990, the above-named owner filed a Petition for
Administrative Review against an order issued on June 11, 1990, by a
Rent Administrator, concerning the housing accommodations known as
apartment 5F at 111 Woodruff Avenue, Brooklyn, New York, wherein the
Rent Administrator found an overcharge of $8,886.42 (including treble
damages and excessive security deposited). (Due to a typographical
error this amount was incorrectly listed as $8,8836.42 in the Rent
Administrator's rent calculation chart.)
The underlying proceeding commenced with the filing of a tenant's
Complaint of Rent Overcharge, in which the tenant stated among other
things, that he had been improperly charged an extra $12 per month for
a new refrigerator (improperly in that the previous tenant's
refrigerator had been "defective" and the tenant was "entitled to a
refrigerator").
In 1987 the owner responded by asserting that the complaint "should be
dismissed since
"a) the statutory period for filing [it] has expired[,]
"b) [it] is . . . improperly completed . . . and very difficult .
. . to understand[,]
"c) [it] is not specific enough . . . [,]
"d) [it] has not been processed in accordance with established DHCR
procedures, which require that the complaint be time-stamped . . . [,]
"e) [t]he complaint has been defectively served . . . [, and]
EF210276RO
"f) [t]enant failed to follow DHCR procedures before filing a
complaint. Tenant did not contact the owner about this problem."
In April, 1990, the owner again wrote seeking dismissal of the
complaint, essentially repeating reasons (a) through (e) above, and
adding the claims that the "tenant objection was not filed by a bonafide
tenant" and that "[w]hen [the] tenant moved he skipped owing many months
rent for which he is still liable."
On May 30, 1990, the Administrator sent the owner a Final Notice
allowing 21 days for the submission of "evidence to rebut a finding that
the overcharge was willful." When the Administrator then issued the
order appealed herein before those 21 days had passed, the owner
protested (while simultaneously filing this petition) in a letter dated
June 25, 1990 to the Administrator that added inter alia: that there had
been no "intentional[] overcharge" but only an "error in calculation"
leading to an overcharge of $56.85; and that the owner had offered the
tenant a "refund of any overcharges," which the tenant had refused.
In response the Administrator allowed the owner until August 6, 1990, to
submit pertinent documentation, and the owner complied before that date.
The Commissioner, in determining this appeal, will consider that
documentation.
The aforementioned documentation received on June 25, 1990 and August 3,
1990, is incorporated by reference in the owner's petition. The tenant
responds that the Administrator's determination is correct, and that
"there appeared to be an overcharge" in the rent for his previous
apartment in the same building.
The Commissioner is of the opinion that this petition should be granted
in part.
The letter of June 25, 1990 states that the owner did not
"intentionally" overcharge, which the Commissioner will take as an
assertion that the overcharge herein was not "willful" within the
meaning of the Rent Stabilization Code. Under that Code, however,
willfulness must be found unless the owner proves the contrary. Here we
have only the assertions (a) that there was an "error in calculation"
and (b) that the tenant had refused a proffered refund; the former is
insufficient to disprove willfulness, and when the latter is combined
with the owner's statement of the amount of the overcharge, it becomes
apparent that the owner could not have tendered an adequate refund such
as would negate the finding of willfulness in the instant circumstances.
(See the chart appended hereto.) Accordingly, the owner has not
established that the overcharge was not willful, and the imposition of
treble damages was warranted.
The same letter next complains that the Administrator's order denies the
owner its right not to be deprived of property without due process of
law, in that the Administrator failed to rule on the owner's
aforementioned request for dismissal of the complaint or to grant the
request for a "reasonable extension" of time to answer same. This
argument is rendered moot by the Commissioner's current consideration of
EF210276RO
documentation submitted after the Administrator's order had been issued,
and of arguments made before the Administrator but not repeated in the
instant petition, to wit:
a) that the tenant's complaint was filed too late. No basis for
that assertion was provided and none is apparent. (If taken to mean
that the Administrator went too far into the past in her calculations,
it is clearly without merit, as the complaint was filed in September,
1987, and the calculations begin with November of 1985.);
b) that the complaint was improperly filled out and/or unclear.
The complaint is quite legible and gives abundant notice of the tenant's
allegations. Although it also alleges overcharges as to a prior
apartment in the same building, the allegations as to the current
apartment are clear. That argument, in sum, was utterly lacking in
merit.
c) that the complaint was not time-stamped. No reason was
presented why that should have been a ground for dismissal. Moreover
the complaint was filed as the front sheet of a five-sheet packet, and
the back of the last sheet is indeed date-stamped.
d) that the complaint was defectively served, a "true and legible
copy" not having been served on the owner, in violation of rules and
regulations and of the owner's right to due process. Neither
explanation nor evidence nor citation to any authority was provided for
that asserted ground for reversal. Assuming, moreover that the argument
had merit, any error has been cured by the Commissioner's late
acceptance of the owner's submissions, after abundant notice to the
owner of the contents of the complaint.
e) that the tenant failed to follow DHCR procedures, by failing
first to contact the owner about the problem. There is no requirement
that a tenant complain to the owner before filing a rent overcharge
complaint.
f) that the Objection herein was not filed by a bona-fide tenant.
There was no basis for that statement. (If the owner was referring to
the claim the tenant was making as to his previous apartment, the
argument has ben mooted by the Administrator's calculation of overcharge
only as to the tenant's current residence.); and
g) that the tenant owed "many months" rent. That appears to have
been a frivolous claim when made to the Administrator (as further
indicated by petitioner's failure to press it before the Commissioner).
The June 25 letter also states that the owner "believe[s] that the
processing of the [tenant's] complaint was not done in accordance with
established DHCR procedures . . . . " The procedural violations are not
specified, and accordingly, this assertion will not be further
considered.
The owner's final citation of error, that the tenant is only entitled to
a refund of $56.85, has resulted in the Commissioner's recomputation of
EF210276RO
the overcharge herein; that recomputation is set forth on the attached
chart, which is hereby made a part of this order. Three basic changes
from the Administrator's order are made therein. The first is that a
rental increase is allowed for the installation of a new refrigerator
just before the tenant assumed occupancy, and the second, that the
tenant's residence under the last lease covered by the Administrator's
order is recognized as having been shorter than the seven months
included therein by the Administrator. The third change is to credit
the owner with the renewal lease of the prior tenant effective May 1,
1985, at a rental of $385.76. A copy of that lease was submitted with
the owner's letter of August 3, 1990.
The evidence justifying the vacancy-improvement increase consists of (a)
notations at the beginning and end of the submitted copy of the tenant's
initial lease, clearly stating that a new refrigerator had been
installed before it was signed and (b) a copy of an invoice for the
purchase of twenty refrigerators in November of 1983, for delivery to
the subject building. Read in that context, the owner's assertion (in
the letter accompanying the documents submitted in 1990) that the
subject refrigerator had been "part of a large order received from Sears
prior to . . . being installed in the apartment" is credible.
Turning to the length of the last lease period, the petition includes a
chart in which the owner states that the tenant "moved out February 28,
1990." Evidence to that effect is provided by a photocopy of a lease
for the subject apartment effective March 15, 1990, between the owner
and a different tenant, and the Commissioner therefore finds--in the
absence of denial by the tenant--that the overcharge ceased at the time
stated by petitioner. It is noted that the tenant moved to another
apartment in the subject premises.
The owner is directed to reflect the findings and determinations made in
this order on all future registration statements, including those for
the current year if not already filed, citing this order as the basis
for the change. Registration statements already on file, however,
should not be amended to reflect the findings and determinations made in
this order. The owner is further directed to adjust subsequent rents to
an amount no greater than that determined by this order plus any lawful
increases.
The Commissioner has determined in this Order and Opinion that the owner
collected overcharges of $379.86. This order may, upon expiration of
the period for seeking review of this Order and Opinion pursuant to
Article Seventy-eight of the Civil Practice Law and Rules, be filed and
enforced as a judgment, or not in excess of twenty percent per month of
the overcharge may be offset against any rent thereafter due the owner.
Where the tenant credits the overcharge, the tenant may add to the
overcharge, or where the tenant files this order as a judgment, the
County Clerk may add to the overcharge, interest at the rate payable on
a judgment pursuant to Section 5004 of the Civil Practice Law and Rules,
from the issuance date of the Rent Administrator's order to the issuance
date of the Commissioner's order. A copy of this order is being sent to
the current occupant of the subject apartment.
EF210276RO
THEREFORE, in accordance with 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 rent for the subject accommodations was $556.22 on
December 1, 1989.
ISSUED:
JOSEPH A. D'AGOSTA
Deputy Commissioner
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