FD 410064 RT, FD 410072 RO
STATE OF NEW YORK
DIVISION OF HOUSING AND COMMUNITY RENEWAL
OFFICE OF RENT ADMINISTRATION
92-31 UNION HALL STREET
JAMAICA, NEW YORK 11433
IN THE MATTER OF THE ADMINISTRATIVE ADMINISTRATIVE REVIEW
APPEALS OF DOCKET NOS.: FD 410064 RT,
FD 410072 RO
182 AVENUE A ASSOCIATES,
DRO DOCKET NO.: ZAH 410262 R
ORDER AND OPINION GRANTING TENANT'S PETITION
FOR ADMINISTRATIVE REVIEW
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 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
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
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
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
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
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
JOSEPH A. D'AGOSTA
Acting Deputy Commissioner