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. EL 210396 RO
: DRO DOCKET NO. K 000305-R
Livingston Street Realty,
TENANT: Fernando Lamberty
ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
On December 18, 1990, the above-named petitioner-owner refiled a
Petition for Administrative Review against an order issued on October
26, 1990 by a Rent Administrator concerning the housing accommodations
known as 364-366 Livingston Street, Brooklyn, New York, Apartment
No. 3-F wherein the Rent Administrator determined that the owner had
overcharged the tenant.
The Administrative Appeal is being determined pursuant to the provisions
of Section 2526.1 of the Rent Stabilization Code.
The issue herein is whether the Rent Administrator's order was
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 by the filing on January 25,
1985 of a rent overcharge complaint by the tenant.
The tenant took occupancy pursuant to a two year lease commencing March
1, 1982 and expiring April 30, 1984, at a monthly rent of $298.50. The
tenant also stated that he never received a copy of the initial
Apartment Registration (RR-1).
The current owner was served with a copy of the complaint and was
directed to submit a complete lease history from the base date,
including copies of all leases.
The owner responded that the only lease it acquired from the prior owner
when it purchased the building on April 26, 1983, was the complainant's
Subsequently the owner was twice requested to submit a copy of the
initial apartment registration and proof of service. The owner did not
comply with this request.
On October 26, 1990, the Rent Administrator issued order number K
000305-R, wherein it was determined that the tenant had been overcharged
in the amount of $10,816.25 through January 23, 1987, including treble
damages and excess security. Because of the owner's failure to submit
a lease history, an initial lawful rent of $233.20 was determined in
accordance with standard default procedures. No further guidelines
increases were granted because of the owner's failure to file the 1984
initial rent registration. Finally, treble damages were imposed because
the owner had failed to prove that the overcharge was not willful.
In its petition, the owner contends that the overcharges cannot be
called "willful" because the owner never knew that the rent was
excessive. It had only purchased the building on April 26, 1983, with
the tenant already in occupancy. Since it was the prior owner who had
miscalculated the rent, the owner believes that that party should be
liable for the overcharges. The owner also feels that treble damages
were inappropriate because the prior owner never turned over all of its
The tenant, who had vacated the subject premises on January 23, 1987
without leaving a forwarding address, did not answer the petition.
The Commissioner is of the opinion that this petition should be denied.
Section 26-516 of the Rent Stabilization Code provides that any owner
who is found by the DHCR to have collected an overcharge shall be liable
to the tenant for treble damages unless the owner establishes by a
preponderance of the evidence that the overcharge was not willful, in
which case interest shall be imposed. Section 26-516 also provides that
treble damages shall be applied only to overcharges occurring on or
after April 1, 1984.
The current owner contends that, even though the tenant was overcharged
in error, it had only purchased the building when the tenant was already
in occupancy and was thus not responsible for the overcharges which
began in the then current lease. The fact that the owner did not
receive complete rent records from the prior owner does not negate the
owner's obligation to provide such records to the DHCR pursuant to the
Rent Stabilization Law and Code. Moreover, the record shows that the
current owner had full ownership of the building on April 1, 1984, when
the initial registration should have been filed, as required under
Section 2521.1(c) of the RSC, but failed to do so, and has in fact
failed to file that registration as of the date of this opinion.
Therefore, the contention that overcharges were not "willful" because
the former owner was responsible for them is incorrect.
Section 2526.1(f) of the Rent Stabilization Code provides in pertinent
1. for overcharges collected prior to April 1, 1984, an
owner will be held responsible only for his or her
portion of the overcharges, in the absence of
collusion or any relationship between such owner and
any prior owner.
In the instant case, the evidence of record discloses that the current
owner first acquired ownership of the subject premises on April 26,
1983, and there is no evidence of any collusion or relationship between
the current owner and any prior owners. Accordingly, the current owner
is not responsible for overcharges occurring prior to April 26, 1983, in
the amount of $783.60, thereby reducing its liability to $10,032.65.
The Commissioner notes that the prior owner or owners were not named by
the tenant in this proceeding, and were not served by the Administrator.
This order is issued without prejudice to the tenant's right, if any, to
proceed against any prior owners in a court of competent jurisdiction.
This order may upon the expiration of the period in which the owner may
institute a proceeding pursuant to Article 78 of the Civil Practice Law
and Rules, be filed and enforced as a judgment.
A copy of this order and opinion is being sent to the current occupant
of the subject premises.
THEREFORE, in accordance with the Rent Stabilization Law and Code, it is
ORDERED, that this petition be, and the same hereby is, granted in part,
and that the District Rent Administrator's order be, and the same hereby
is, modified to show that the owner herein is responsible for refunding
a total overcharge of $10,032.65, the amount of overcharge occurring
from April 26, 1983. In all other respects, the Administrator's order
JOSEPH A. D'AGOSTA
Acting Deputy Commissioner