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.: EK110347RO
Nathan Katz DRO DOCKET NO.: BF110591R
TENANT: Julietha Moreno
ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On November 28, 1990, the above-named petitioner-owner timely refiled a
Petition for Administrative Review against an order issued on
September 20, 1990, by the Rent Administrator, 92-31 Union Hall Street,
Jamaica, New York, concerning the housing accommodations known as 47-06
46th Street, apartment D-4, Woodside, New York, wherein the Rent
Administrator determined that the tenant had been overcharged in the
amount of $5583.94 inclusive of interest and treble damages on the
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 commenced on June 1,1987 when the tenant filed a
complaint of rent overcharge.
In answer to the complaint, the owner stated that although he had
inadvertently collected an overcharge, he had corrected his error,
reduced the rent to include only guidelines increases and an increase
based on improvements made while the apartment was vacant and had
refunded to the tenant the overcharges collected.
In Order Number ZBF110591R, the Rent Administrator determined that a
total overcharge inclusive of interest and treble damages, of $8576.66,
had been collected. Because the evidence indicated that $2992.72 had
already been refunded to the tenant, the owner was directed to refund
In his appeal, the owner contends that the Administrator's order should
be reversed with respect to treble damages pursuant to Policy Statement
89-2 because by refunding the overcharge, the owner had established by
a preponderance of the evidence that the overcharge had not been
The tenant contends that treble damages are warranted because the owner
has consistently demonstrated a lack of good faith.
The Commissioner is of the opinion that this petition should be denied.
Section 2526.1 of the Rent Stabilization Code imposes a penalty of
treble damages on overcharges except where an owner establishes by a
preponderance of the evidence that the overcharge was not willful.
Policy statement 89-2 enunciates instances, including the one relied on
by the instant owner, where an owner will be deemed to have met his
burden of proving lack of willfulness by a preponderance of the evidence
and not be subject to treble damages. Pursuant to Policy Statement 89-
2, the treble damages penalty is not applicable where an owner adjusts
the rent on his own within the time afforded to interpose an answer and
tenders a full refund including interest.
Review of the record discloses that the owner herein adjusted the rent
and tendered a refund. However, the record further reveals that the
owner failed to adjust the rent to the correct amount and continued to
collect an overcharge even after the refund was tendered. Accordingly,
the Commissioner finds that the owner's actions do not meet the
requirements of Policy Statement 89-2 and that therefore the imposition
of treble damages was warranted.
The Commissioner has determined in this Order and Opinion that the owner
collected overcharges of $5583.94. 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 overcharges 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.
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
THEREFORE, in accordance with the provisions of the Rent Stabilization
Law and Code, it is
ORDERED, that this petition for administrative review be, and the same
hereby is, denied, and the Rent Administrator is ordered be, and the
same hereby is, affirmed.
JOSEPH A. D'AGOSTA