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

      ------------------------------------X 
      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    : 
      ------------------------------------X                             

          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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