Adm. Review Docket No: EL 810097-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
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IN THE MATTER OF THE ADMINISTRATIVE : ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.: EL 810097-RO
:
DOWNING MGMT. CO., DISTRICT RENT ADMINISTRATOR'S
DOCKET NO.: SDH-8-1-0028-R
PETITIONER :
------------------------------------X TENANT: Gregory Classon
ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
IN PART
On December 5, 1990 the above-named petitioner-landlord filed a
Petition for Administrative Review against an order issued on
November 7, 1990 by the District Administrator, 55 Church Street,
White Plains, New York concerning housing accommodations known as
Apartment 5F at 555 Broadway, Hastings-on-Hudson, New York wherein
the District Rent Administrator determined that the landlord had
overcharged the tenant.
The issue in this appeal is whether the District Rent
Administrator's order was warranted.
The applicable sections of the Law are Sections 35, 71, 122 and 123
of the Tenant Protection Regulations (9 NYCRR Sections 2502.5
[c][9], 2506.1[a], 2509.2 and 2509.3).
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 petition.
This proceeding was originally commenced by the filing in August,
1989 of a rent overcharge complaint by the tenant, in which he
stated that he had commenced occupancy in May, 1986 at a rent of
$758.00 per month.
The landlord was served with a copy of the complaint and was
requested to respond. The file of the proceeding before the
Administrator does not contain any submissions from the landlord.
In an order issued on November 7, 1990 the Administrator found that
the landlord could not charge a guideline increase for leases
commencing between October 1, 1987 and September 30, 1988 because of
the landlord's failure to timely file a 1987 Operating and
Maintenance Expenses Schedule, and that the landlord could not
collect any rent above the registered 1984 rent until it registered
the apartment for 1985 and 1986. The Administrator determined an
overcharge of $14,936.16 as of August 31, 1990, including treble
damages, on those overcharges occurring no more than two years prior
to the filing of the tenant's complaint.
In this petition, the landlord contends in substance that it did
Adm. Review Docket No: EL 810097-RO
submit a response that was received by the DHCR on October 15, 1989;
that it did file the 1985 and 1986 apartment registrations; that it
files the financial data for all of its Westchester County buildings
at the same time; and that in the case of another building whose
financial report was filed at the same time as the report of the
subject building, the DHCR issued an order finding that the landlord
had filed the necessary reports for 1987, 1988 and 1989. With its
petition the landlord has enclosed an answer dated October 13, 1989
in which it stated that it had filed in a timely manner but had to
resubmit the forms when the DHCR misplaced them; copies of the
tenant's leases; a certified mail receipt signed by a DHCR staff
person on October 15, 1989; an order (Docket No. DH 8-1-0263/R)
concerning a building of the landlord's at 300 Broadway in Dobbs
Ferry where the Administrator terminated a proceeding because "[a]
check of the Agency records indicates that the landlord has filed
the required Operating and Maintenance expense schedules for the
1987-88, 1988-89 and 1989-90 guideline periods"; copies of
"Apartment Registration Proof of Mailing" printouts from the Rent
Stabilization Association (R.S.A.) for 60 apartments at 555 Broadway
for various years, with the dates for "State Package Mailed" given
as November 5, 1985 (for 1985), April 8, 1987 (for 1986), October
20, 1987 (for 1987), November 16, 1988 (for 1988) and August 10,
1989 (for 1989); affidavits dated November 12, 1990 from the R.S.A.
Director of Finance swearing that registration forms were mailed to
each tenant listed on the dates given; and U.S. Postal Service
Mailing receipts for each mailing (other than October 20, 1987).
The Commissioner is of the opinion that this petition should be
granted in part.
Section 123 of the Tenant Protection Regulations (9 NYCRR Section
2509.3) provides in substance that a landlord's failure to file a
proper and timely registration shall bar the landlord from
collecting any rent in excess of the legal regulated rent in effect
on the day of the last registration statement. The filing of a late
registration results in the prospective elimination of this
sanction.
The landlord has submitted evidence, which it claims was submitted
to the Administrator, showing that the 1985 registration was mailed
to the prior tenant on November 5, 1985 and that the 1986
registration was mailed to the complainant on April 8, 1987.
Because of late filing of the registration the complainant's May 1,
1986 lease therefore did not serve to increase the lawful rent above
the registered April 1, 1985 rent of $675.16 until April 8, 1987.
The Westchester County Rent Guidelines Order for leases commencing
between October 1, 1987 and September 30, 1988 provided among other
things for a permanent loss of a guidelines increase where there was
a late filing of the Operating and Maintenance Expenses Schedule
(absent permission from the DHCR to charge the increase by virtue of
having provided an acceptable excuse for the late filing). DHCR
records show that the 1987 financial report was received from the
landlord on July 30, 1987, more than two months late. On March 14,
1988 an Associate Attorney with the DHCR wrote the landlord
regarding its applications to restore the guidelines increases for
555 Broadway (Hastings-on-Hudson) and 300 Broadway (Dobbs Ferry).
He noted that the report, although dated April 30, 1987, bore a
postmark of July 29, 1987 and that the owner had not provided a
Adm. Review Docket No: EL 810097-RO
certified mail receipt. He therefore denied the owner's
applications. While the landlord has now enclosed an order finding
that the landlord could collect guideline rent increases on leases
commencing October 1, 1987 to September 30, 1988 at 300 Broadway,
that is not the subject building, and the landlord has not
submitted any evidence to show that the report for the subject
building was timely filed. The Commissioner therefore finds that it
was warranted for the Administrator to find that the landlord was
not eligible to collect a guideline increase on leases commencing
between October 1, 1987 and September 30, 1988. Taking these
factors into account, the Commissioner has set forth the lawful
stabilization rents and the amount of overcharge on the amended rent
calculation chart attached hereto and made a part hereof.
Section 71 of the Tenant Protection Regulations (9 NYCRR Section
2506.1[a][1]) provides in substance that treble damages will be
imposed unless "the landlord establishes by a preponderance of the
evidence that the overcharge was neither willful nor attributable to
his negligence." The Commissioner is not persuaded that the
landlord was not at least negligent, if not willful, in continuing
to charge the tenant rent increases despite the late filing of
apartment registrations and financial reports, which late filings
resulted in the temporary or permanent inability of the landlord to
collect such increases. In addition, the tenant's initial rent of
$758.00 represented an unlawful increase over the previous rent even
if the landlord had not been temporarily disqualified from
collecting any increase.
The owner is cautioned to adjust the rent, in leases after those
considered in this order, to amounts no greater than that determined
by this order plus any lawful increases, and to register any
adjusted rent, with this order being given as the reason for the
adjustment. Because the complainant has vacated, a copy of this
order is being sent to the current tenant.
This order may, upon the expiration of the period in which the owner
may institute a proceeding pursuant to Article seventy-eight of the
civil practice law and rules, be filed and enforced by the tenant in
the same manner as a judgment.
THEREFORE, in accordance with the Emergency Tenant Protection Act
of 1974 and the Tenant Protection Regulations, 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 in accordance with this Order and Opinion.
The lawful stabilization rents and the amount of overcharge are
established on the attached chart, which is fully made a part of
this order. The total overcharge is $7,309.75 as of August 31,
1990. The lawful stabilization rent is $764.97 per month as of
August 31, 1990.
ISSUED:
Adm. Review Docket No: EL 810097-RO
ELLIOT SANDER
Deputy Commissioner
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