EL 210396-RO


                                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. EL 210396 RO

                                          :  DRO DOCKET NO. K 000305-R
           Livingston Street Realty,
                                             TENANT: Fernando Lamberty        
                  
                            PETITIONER    : 
      ------------------------------------X                             


          ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
                                     IN PART


      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 
      warranted.

      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 
      initial lease.

      Subsequently the owner was twice requested to submit a copy of the 
      initial apartment registration and proof of service.  The owner did not 







          EL 210396-RO

      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 
      records.

      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 
      part that:



           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 


          EL 210396-RO

      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 
      is affirmed.


      ISSUED:



                                                                    
                                      JOSEPH A. D'AGOSTA
                                      Acting Deputy Commissioner






    

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