Docket No. EL 410275-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 410275-RO
SOLIL MANAGEMENT CORP., DRO DOCKET NO.: ZL 003751-R
TENANT: Rita Halley
PETITIONER
----------------------------------X
ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On December 20, 1990 the above-named petitioner-owner filed a
Petition for Administrative Review against an order of the Rent
Administrator issued November 30, 1990. The order concerned
housing accommodations known as Apt. 8N located at 145 East 16th
Street, New York, New York. The Administrator determined that the
tenant had been overcharged in the amount of $6,541.72.
The Commissioner has reviewed the record and carefully considered
that portion relevant to the issues raised by this appeal.
The tenant commenced this proceeding by filing a rent overcharge
complaint on September 11, 1985. She stated that she took
occupancy of the apartment September 1, 1984 at a rent of $514.09
per month. She also stated 4 reasons that she believed the owner
was overcharging her:
1) The owner did not provide a rent history rider
with the initial lease
2) She was denied the opportunity to protest the
installation of certain appliances in the apartment
because the owner did not send her the proper
documentation.
3) The owner incorporated the appliance charge
into the base rent of her next lease when that charge
had yet to be substantiated.
4) The owner refused to allow her to sign a 2 year
initial lease which would have meant that a renewal
would be in accordance with guidelines which would have
resulted in a lower renewal rent.
The owner was served with a copy of the complaint and afforded an
opportunity to reply. The owner filed a reply on October 14, 1985
wherein it set forth a rent history from June 1, 1981 and provided
bills substantiating the appliance charge of $25.50 per month.
The owner denied preventing the tenant from signing a two year
lease. The tenant filed a response to the owners answer on
October 26, 1985 wherein she repeated her assertion that the
appliance charge should not have been added without her consent.
Docket No. EL 410275-RO
She also took issue with the owners rent history.
On August 3, 1990 the Administrator sent a request for additional
evidence to the owner wherein the following was demanded to be
produced:
1) copies of all leases from April 1, 1989 to present
2) copies of cancelled checks and bills to
substantiate the $25.50 per month charge for
appliances
3) a copy of an MCI order pursuant to which the owner
increased the tenants rent in January 1989.
The owner complied with the Administrator's request.
On November 30, 1990 the Administrator issued the order under
appeal. The Administrator found that the owner properly
substantiated the cost of the improvements but, that the $25.50
per month was added prospectively to the tenant in October 1,
1984 for new equipment installed during a vacancy period the cost
must be added to the tenants lease from the beginning of that
lease. Since the owner did not begin to collect the increase on
September 1, 1984 and since no written consent to the increase had
ever been given by the tenant, the Administrator ruled that the
owner's prospective imposition of the appliance charge was
improper. An overcharge of $2,169.57 was computed and trebled.
The total overcharge was fixed at $6,541.72 including excess
security.
On appeal the owner states that the failure to begin charging the
tenant for the appliance installation on September 1, 1984 was due
to the "care not to charge the tenant an arbitrary amount for the
new appliances in the vacancy lease without proper
substantiation." The petitioner claims that the tenant was unsure
of the exact amount of the charge until after the lease term began
and was a month late in beginning to assess the charge while it
determined the proper amount. Petitioner argues that the lease
provides for adjustments but it is a clause dealing with
adjustments due to rent guidelines. Petitioner also states that,
even assuming arguendo there was an overcharge, the facts of this
case indicate it was not "willful" within the meaning of the
provision of the Rent Stabilization Code mandating the imposition
of treble damages. The tenant filed a response wherein she
restated her belief that the owner acted improperly and that the
charges were willful.
Docket No. EL 410275-RO
After a careful review of the evidence in the record the
Commissioner is of the opinion that the petition should be denied.
Pursuant to Section 2522.4 (a) (4) and (5) of the Rent
Stabilization Code:
(4) "The increase in the monthly stabilization rent for
the affected housing accommodations when authorized
pursuant to paragraph (1) of this subdivision (a) shall
be 1/40th of the total cost including installation, but
excluding finance charges; and any increase pursuant to
paragraphs (2) and (3) shall 1/60th of the total cost
including installation but excluding finance charges as
allocated in accordance with paragraph (12) of this
subdivision (a) for increases pursuant to subparagraphs
(iii) and (iv) of paragraph (2) of this subdivision (a),
in the discretion of the DHCR, an appropriate charge may
be imposed in lieu of an amortization charge when an
amortization charge is insignificant or inappropriate.
(5) Such increases shall not be collectible during the
term of a lease then effect, unless a specific provision
in the tenant's lease authorizes an increase during its
term pursuant to an order issued by the DHCR, except
increases pursuant to paragraph (1) of this subdivision
(a) may be collected upon installation."
The plain language of Section 2522.4(a)(5) mandated a finding that
petitioner improperly began charging the tenant in October 1984.
Regardless of petitioner's attempts to explain this action the
tenant did not consent to the installation, as she was obliged to
do for the owner to collect the appliance charge during the lease
term. The Administrator correctly applied the law to the facts
presented in the record. Similarly, the Administrator was correct
in imposing treble damages. The owner is presumed to know the
provisions of the Rent Stabilization Code including those set
forth above. Pursuant to 9NYCRR 2526.1 (a)(1):
"Any owner who is found by the DHCR, after a reasonable
opportunity to be heard, to have collected any rent or
other consideration in excess of the legal regulated
rent shall be ordered to pay to the tenant a penalty
equal to three times the amount of such excess, except
as provided under subdivision (f) of this section."
While certain exceptions to this rule exist petitioners actions do
not fall under any of the circumstances that would relieve it from
treble damages liability. The Administrator's order was based o
substantial evidence and must be affirmed.
THEREFORE, pursuant to the Rent Stabilization Law and Code, it is
Docket No. EL 410275-RO
ORDERED, that this petition be, and the same hereby is, denied and
that the Rent Administrator's order be, and the same hereby is,
affirmed.
ISSUED:
ELLIOT SANDER
Deputy Commissioner
|
