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
APPEAL OF DOCKET NO.:
IRVING T. BUSH,
DRO DOCKET NO.:
PETITIONER BK 410281-R
ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
On April 1, 1991, the above named petitioner-owner filed a
Petition for Administrative Review against an order issued on
February 27, 1991, by a Rent Administrator concerning housing
accommodations known as Apartment 3-F at 245 West 4th Street, New
York, New York, wherein the District Rent Administrator
determined that the tenant had been overcharged in the amount of
$579.45, including treble damages and excess security.
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 appeal.
This proceeding was originally commenced by the filing of a rent
overcharge complaint by the tenant on November 9, 1987.
The tenants took occupancy pursuant to a two-year lease
commencing October 11, 1986, and expiring September 30, 1988, at
a monthly rent of $482.75.
The owner was served with a copy of the complaint and was
directed to submit a complete rent history as of the base date,
including copies of all leases. The owner complied with this
request. In a letter dated September 7, 1990, the owner stated
that the total cost for the installation of windows in the
subject-apartment prior to the lease commencing on July 1, 1986,
In Order No. BK 410281-R issued on February 27, 1991, the
District Rent Administrator determined that the tenant had been
overcharged in the amount of $579.45, including treble damages
and excess security. In the rent calculations chart, the
Administrator credited $581.30 for the cost of the windows, out
of the claimed cost of $750.00.
In its petition, dated April 1, 1991, the owner contends that the
Administrator did not credit the total cost of windows that were
installed in the apartment. The owner states that the cost for
the installation of the windows was $120.00 which, when added to
the $581.30 which the owner paid for the windows, results in a
total cost of $701.30.
The Commissioner is of the opinion that this petition should be
granted in part.
Section 2522.4(a) of the current Rent Stabilization Code provides
in pertinent part that an owner is entitled to a rent increase of
1/40th of the cost of improvements or new equipment, including
the cost of installation.
In the present case, the sole issue raised by petitioner is the
Administrator's disallowance of the cost of installation of
windows. The record below contains a copy of the invoice from
the window supplier documenting the actual price of the three
windows as $581.30. This cost is fully credited by the
Administrator. However, petitioner also claims an additional
$120.00 for their separate installation, at $40.00 per window.
Since there is nothing in the record to document this separate
installation charge and the owner provides no explanation as to
why some proof of this cost cannot be obtained, the disallowance
of the $120.00 claim was proper.
However, petitioner is correct in contending that this portion of
the overcharges should not have been deemed willful by the
Administrator. The Commissioner has previously held that to the
extent that overcharges result from the owner's failure to
adequately document the installation of new equipment, treble
damages should not be assessed (Accord: ARL 04185-L). By elimi-
nating the treble damages penalty for the installation claim,
total overcharges are reduced to $251.61 ($191.76 total
overcharges - $163.92 total overcharge for installation = $27.84
other overcharges x 3 = $83.52 + $163.92 + $4.17 security =
If the owner has already complied with the Administrator's order
and there are arrears due to the owner as a result of the instant
determination, the tenant may pay off the arrears in two (2)
equal monthly installments. Should the tenant vacate after the
issuance of this order, said arrears shall be payable immedi-
THEREFORE, pursuant to the Rent Stabilization Law and Code, it is
ORDERED, that the owner's Petition be, and the same hereby is
granted, and that the Administrator's order be, and the same
hereby is amended in accordance with this order and opinion.