ADM. REVIEW DOCKET NO.: FA 410332 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.:
FA 410332 RO
:
DRO ORDER NO.:
CA 410317 - R
VIC BERTRAND
TENANT: Marie Badeaux
PETITIONER :
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On January 30, 1991, the above-named petitioner filed a
Petition for administrative review against an order issued on
January 22, 1991, by an Administrator concerning the housing
accommodation known as 203 West 109th Street, New York, New York,
Apartment No. 3E, wherein the Administrator determined that the
tenant had been overcharged.
The Commissioner has reviewed all of the evidence in the
record and has carefully considered that portion of the record
relevant to the issues raised by the administrative appeal.
This proceeding was originally commenced by the filing of an
overcharge complaint by the tenant on January 18, 1988. The
tenant took occupancy of the subject apartment on August 1, 1981
pursuant to a two year vacancy lease at a monthly rent of
$275.00.
In her complaint the tenant contended that she did not
receive the initial apartment registration form and that the
owner collected a large increase above the 1987 rent.
The owner in response to the overcharge complaint submitted
leases from August 1, 1985 through July 31, 1991. In addition,
the owner submitted two consent forms for the installation of new
equipment installed within the apartment during the years of 1986
and 1988.
On October 3, 1990, the owner was requested to submit copies
of cancelled checks and bills substantiating the cost of new
ADM. REVIEW DOCKET NO.: FA 410332 RO
equipment installed within the subject apartment. In addition,
the owner was asked to submit a copy of the initial apartment
registration form (1984), proof of service of said form, a copy
of the 1987 apartment registration form and a copy of the
tenant's lease for the period of April 1, 1984.
On November 5, 1990, the owner was sent an additional
information letter advising the owner that it failed to submit
the documentation requested on October 3, 1990. The owner was
further advised that he had to submit copies of leases or rent
ledgers from April 1, 1980 for the subject apartment. Lastly,
the owner was advised that failure to submit the requested
information would result in a default determination and the
imposition of treble damages on any willful overcharge occurring
after April 1, 1984.
On January 22, 1991, the Rent Administrator established the
lawful stabilized rent at $209.50 commencing August 1, 1981. The
Administrator's determination was based upon the owner's failure
to provide a copy and proof of service of the Initial
Registration form (1984) and the registration form for 1987. The
owner also failed to provide the lease covering April 1, 1980.
Therefore, the Administrator imposed treble damages on
overcharges occurring after April 1, 1980. The total overcharge
was $22,000.89 as of August 31, 1990.
In his petition for administrative review the owner
contends, in substance, that the 1984 Apartment Registration was
hand delivered to the tenant by the superintendent of the subject
premises, and that contrary to the Administrator's order, the
building was registered in 1987.
In support of his allegation that the building was
registered in 1984 and 1987 the owner submits copies of the 1984
and 1987 apartment registrations.
Lastly, the owner contends that the assessment of treble
damages was improper since the prior owner and the petitioner had
filed the appropriate documents in a timely manner.
On February 19, 1991, the tenant was served with a copy of
the owner's petition. In response to the petition the tenant
alleges, among other things, that prior to her occupancy the rent
was between $100.00 and $150.00 dollars a month and the owner has
failed to prove what the actual prior rent was.
The Commissioner is of the opinion that this petition should
be denied.
The Commissioner finds that the Administrator's
determination was properly based on the entire record. Pursuant
to the 1984 Registration procedures, owners of rent stabilized
dwellings were advised that copies of the apartment registration
had to be served upon the tenant named in the lease at the time
of initial registration, or to the first tenant in occupancy if
the apartment was vacant at the time of initial registration.
Moreover, the owner was advised to obtain an acceptable proof of
ADM. REVIEW DOCKET NO.: FA 410332 RO
delivery in one of the following ways:
1. Hand-deliver the envelope to the tenant
named, and get an appropriate signed
receipt.
2. Use the U.S. Post Office "Carrier
Route Pre-Sort" service, through
a bonded mailing house. The Post
Office will date-certify the number
of pieces received from the mailing
house for each building, and the
bonded mail house will furnish a
list of the addresses. This service
can be arranged through the Rent
Stabilization Association of New York
City (for RSA members only), or
directly through a bonded mailing
house. You should keep both the Post
Office certification and the mailing
house addressee list.
3. Obtain a signed and dated copy of Post
Office form #PO 3877 "Acceptance of
Registered, Insured, C.O.D. and
Certified Mail", which is available
through your post office and can be
used to prove date of delivery of
regular first-class mail to the post
office. You must list each individual
tenant's name (15 names per page), and
the address to which this mailing is
sent.
The owner was additionally advised that the proof(s) of
receipt, properly signed and dated (by the tenant, the post
office, or the mailing house, as appropriate), will be
considered adequate by DHCR to establish the tenant's 90-day
challenge period, which will begin on the date of the receipt.
This "date of receipt" must also be entered on another form which
is part of the initial registration, the "Registration Summary,"
form RR-2. The owner was, therefore, clearly notified of the
importance of keeping the completed and signed document(s) of
receipt.
A review of the record indicates that the owner failed to
provide proof of service of the 1984 apartment registration form.
Therefore, that portion of the Administrator's order addressing
ADM. REVIEW DOCKET NO.: FA 410332 RO
the 1984 registration was correct.
Pursuant to Section 2528.4 of the Rent Stabilization Code
the failure to properly and timely comply with the initial or
annual rent registration as required shall, until such time as
the registration is completed, bar an owner from applying for or
collecting any excess rent in excess of the legal regulated rent
in effect on April first of the year for which an annual
registration was required to be filed, or such other date of that
year as may be determined by the Division.
Secondly, it is well-settled that, absent good cause being
shown, an Administrative Review is not a de novo proceeding but
is limited to the issues and evidence which were before the
Administrator. The owner was given ample opportunity to submit
the 1987 apartment registration and summary form, but failed to
do so in the initial proceeding. Most importantly, a current
review of the Division's registration information revealed that
the owner did not register the apartment for the 1987
registration period.
The owner is advised that filing of the required
registration shall result in the elimination, prospectively of
such penalty. Therefore, the Administrator's finding concerning
the owner's failure to register the subject apartment during the
year of 1987 and subsequent suspension of the collection of
guideline increases was correct.
Pursuant to Section 2526.1 of the Rent Stabilization Code,
treble damages are imposed on overcharges collected on or after
April 1, 1984, unless the owner establishes by a preponderance of
the evidence that the overcharges were not willful.
A review of the record indicates that the owner was sent a
notices on August 9, 1990 and November 5, 1990, advising him that
treble damages would be imposed on willful overcharges. The
owner failed to submit any evidence that the overcharges herein
were not willful. The petitioner's allegation that rent records
had been properly submitted is belied by the record herein.
Accordingly, the owner failed to establish by a preponderance of
the evidence that the overcharge was not willful. Therefore, the
imposition of treble damages was correct.
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 by the
tenant in the same manner as a judgment or not in excess of
twenty percent thereof per month may be offset against any rent
thereafter due the owner.
THEREFORE, in accordance with the Rent Stabilization Law and
Code, it is
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.
ADM. REVIEW DOCKET NO.: FA 410332 RO
ISSUED:
JOSEPH A. D'AGOSTA
Deputy Commissioner
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