FD 410064 RT, FD 410072 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
          APPEALS OF                             DOCKET NOS.: FD 410064 RT,
                                                              FD 410072 RO

                       FRED WASSERMAN
                            AND
                  182 AVENUE A ASSOCIATES,
                                                 DRO DOCKET NO.: ZAH 410262 R
                                                                              
                                  PETITIONERS    
          ------------------------------------X                             


                    ORDER AND OPINION GRANTING TENANT'S PETITION
                              FOR ADMINISTRATIVE REVIEW
                                        IN PART
                                         AND
                 DENYING OWNER'S PETITION FOR ADMINISTRATIVE REVIEW


          On April 1, 1991, the above-named petitioner-owner and tenant filed 
          Petitions for Administrative Review against an order issued on 
          February 25, 1991, by the Rent Administrator, 92-31 Union Hall 
          Street, Jamaica New York, concerning the housing accommodations 
          known as 182 Avenue A, New York, New York, Apartment No. 4, wherein 
          the Rent Administrator determined that the owner had overcharged 
          the tenant.

          The Administrative Appeals are 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 appeals.  

          This proceeding was originally commenced by the filing in August 
          1986 of a rent overcharge complaint by the tenant who stated in 
          substance that he was being overcharged and that he had moved to 
          the subject apartment on June 1, 1986 at a rental of $823.00 per 
          month whereas the prior tenant had paid $653.82 per month.  As 
          proof that the prior tenant had paid $653.82 per month, the tenant 
          submitted a copy of a post due rent notice sent to the prior tenant 
          dated May 13, 1986 to the effect that a rent of $653.82 was due.

          On January 24, 1991 a copy of the tenant's complaint was sent to 
          the owner and the owner was afforded an opportunity to submit a 
          rental history from April 1, 1980, and proof that the subject 







          FD 410064 RT, FD 410072 RO

          apartment was registered, and a registration notice served on the 
          tenant.  The owner was also advised that, if an overcharge was 
          found and determined to be willful, treble damages would be 
          imposed.  No response was received from the owner.

          On January 24, 1991 a request was sent to the tenant to update the 
          rental history for the subject apartment from June 1, 1986 to the 
          present.  No response was received from the tenant.

          In Order Number ZAH 410262 R, based on the owner's failure to 
          submit a rental history, the Rent Administrator established the 
          lawful stabilization rent as $721.93 effective June 1, 1986, 
          determined that the tenant had been overcharged and directed a 
          refund to the tenant of $11,930.16 including treble damages on that 
          portion of the overcharge collected on and after April 1, 1984.

          In the owner's petition, the owner alleges in substance that it 
          never received notice of the proceeding until receiving a copy of 
          the Rent Administrator's order, that it was not given notice of the 
          imposition of treble damages and that the subject premises was 
          properly registered with the Division of Housing and Community 
          Renewal (DHCR).

          In the tenant's petition, the tenant alleges in substance that the 
          June 1, 1986 rent should have been set at $653.82, the last rent 
          paid by the prior tenant and that the rent overcharge should have 
          been updated to calculate overcharges through February 1991 rather 
          than through May 31, 1989 as done in the Rent Administrator's 
          order.  Subsequently the tenant advised that he has now moved from 
          the subject apartment.

          The Commissioner is of the opinion that the tenant's petition 
          should be granted in part and that the owner's petition should be 
          denied.

          An examination of the records in this case discloses that contrary 
          to the owner's contention on appeal, it was duly served with a copy 
          of the tenant's rent overcharge complaint on January 24, 1991 at 
          its last registered address which was the same address that the 
          final order was sent to, and afforded an opportunity to respond.  
          Further the record reveals that the Rent Administrator's order 
          correctly indicated that the subject apartment was not registered.  
          Although DHCR rent records show that the subject premises was 
          registered as required, the records do not indicate that the 
          subject apartment 4 was registered at the time the Rent 
          Administrator's order was issued.

          With regard to the owner's contention that the imposition of treble 
          damages was not warranted, Section 2526.1 of the Rent Stabilization 
          Code provides in pertinent part that any owner who is found by the 
          DHCR to have collected a rent or other consideration in excess of 
          the legal regulated rent on and after April 1, 1984 shall be 
          ordered to pay to the tenant a penalty equal to three times the 
          amount of such excess.  If the owner establishes by a preponderance 
          of the evidence that the overcharge was not willful, the DHCR shall 
          establish the penalty as the amount of the overcharge plus interest 
          from the date of the first overcharge on or after April 1, 1984.



          FD 410064 RT, FD 410072 RO

          In the instant case, the owner has not submitted any evidence to 
          substantiate its claim that the overcharge was not willful although 
          advised in the January 24, 1991 notice about the fact that treble 
          damages would be imposed on any willful overcharges found.  
          Accordingly, the imposition of treble damages was warranted.

          With regard to the tenant's petition, the tenant is correct in his 
          contention that his initial rent should have been listed as $653.82 
          the last rent paid by the prior tenant.

          DHCR has adopted a procedure for determining an apartment rent 
          where an owner does not provide a complete rent history of the 
          apartment.  In such cases the rent is calculated to be the lowest 
          of the following amounts:

               1)   the lowest stabilized rent for a same size 
                    apartment in the building;

               2)   the current tenant's initial rent minus a 
                    guideline and vacancy allowance;

               3)   the prior tenant's last rent, if known.

          The tenant submitted sufficient evidence in the proceeding before 
          the Rent Administrator to establish that the prior tenant's last 
          rent was $653.82 and the owner has not submitted any evidence in 
          opposition thereto.  Therefore the Rent Administrator in accordance 
          with the aforementioned default procedures should have established 
          the tenant's initial rent effective June 1, 1986 as $653.82 rather 
          than as $721.93.

          With regard to the tenant's contention that the rent overcharge 
          should have been updated to calculate overcharges through February, 
          1991, it is noted that the tenant failed to respond to the January 
          24, 1991 DHCR notice requesting an updated rental history and has 
          not given any explanation for such failure.  Since this is not a de 
          novo proceeding the overcharge cannot be updated on appeal.

          Taking the above factors into account, the Commissioner has 
          recalculated the lawful stabilization rents and amount of rent 
          overcharge for the subject apartment, including treble damages, on 
          the overcharge occurring on and after April 1, 1984.  The lawful 
          stabilization rents and amount of rent overcharge are set forth on 
          the amended rent calculation chart attached hereto and made a part 
          hereof.

          Because this determination concerns lawful rents only through      
          May 31, 1989, the owner is cautioned to adjust subsequent rents to 
          an amount no greater than that determined by this order plus any 
          lawful increases, and to register any adjusted rents with this 
          order and opinion being given as the explanation for the 
          adjustment.

          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 in the same 
          manner as a judgment.  A copy of this order is being sent to the 
          tenant currently in occupancy at the subject apartment.







          FD 410064 RT, FD 410072 RO


          THEREFORE, in accordance with the provisions of the Rent 
          Stabilization Law and Code, it is

          ORDERED, that the tenant's petition for administrative review be, 
          and the same hereby is, granted in part, that the owner's petition 
          for administrative review be, and the same hereby is, denied, and, 
          that the order of the Rent Administrator be, and the same hereby 
          is, modified in accordance with this order and opinion.  The lawful 
          stabilization rents and the amount of the rent overcharge are 
          established on the attached chart which is fully made a part of 
          this order.  The amount of the rent overcharge through May 31, 1989 
          is $19,354.15.





          ISSUED

                                                                      
                                          JOSEPH A. D'AGOSTA
                                          Acting Deputy Commissioner

    

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