FD 110008-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
APPEAL OF                               DOCKET NO.:
                                        FD 110008-RO
       MICHAEL SLATTERY,
                                        DRO DOCKET NO.:
                        PETITIONER      CC-110359-R
----------------------------------x


  ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
                                
                                
On  April  2,  1991,  the  above named petitioner-owner  filed  a
Petition  for  Administrative Review against an order  issued  on
February  26,  1991,  by a Rent Administrator concerning  housing
accommodations  known as Apartment DD-1 at 104-35  102nd  Street,
Queens,   New  York,  wherein  the  District  Rent  Administrator
determined that the tenant had been overcharged in the amount  of
$11,712.21, 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 April 14, 1988.

The tenant took occupancy pursuant to a two-year lease commencing
September  1,  1987, and expiring August 31, 1989, at  a  monthly
rent of $502.71.  The complaint also alleged that the tenant  was
being  charged too much for new equipment installed by the owner.
The  tenant  then stated that the rent was increased  to  $551.36
with the approval of the owner's MCI application for new windows.
The  tenant  also  indicated in the complaint that  she  had  not
received any apartment registration form from the owner.

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.

In  reply  dated August 14, 1988, the owner stated that the  rent
after  the MCI increase was only $548.11, not $551.36.   Although
leases  were submitted with the reply, there was no documentation
of the cost of new equipment.


On September 24, 1990, the Administrator requested that the owner
provide receipts of paid bills for all equipment installed in the
subject apartment since the base date and proof of filing of  the
Annual  Registration statements with the Division of Housing  and
Community  Renewal  (DHCR) for 1986, 1987  and  1988,  since  the
Agency's records do not show registration for those years.

On  October  22,  1990  the  owner submitted  various  documents,
including  owner's copies of annual registration  statements  for
1987 and 1988, with no proof of mailing, and copies of leases  of
the  subject apartment.  No checks or receipts for new  equipment
were  submitted.  The owner stated that the  tenant  vacated  the
apartment on August 31, 1989.

The Administrator sent another request for that documentation  to
the  owner on December 17, 1990 with a stated deadline of 20 days
from  the above date of mailing.  The request notified the  owner
of  the  possible imposition of treble damages if the record  did
not establish that overcharges were not willful.  The owner's new
attorney  subsequently requested two extensions of time  for  the
submission  of  the above documentation, until  January  7th  and
January 25th, respectively, which the DHCR granted in both cases.
A third request, dated February 19, 1991, stated that if the DHCR
did not reply by March 12, 1991, by which date the attorney would
have  prepared  a "proper" response, they would assume  that  the
request had been granted.

In  an  order issued on February 26, 1991, the Rent Administrator
determined that the tenant had been overcharged in the amount  of
$11,712.21 through August 31, 1989, including treble damages  for
overcharges  collected  from the complaining  tenant  and  excess
security.  The Administrator determined a lawful rent of  $378.34
as  based  on  the  most  recently  filed  registration  for  the
apartment.  The order stated that the owner failed to register in
1986, 1987 and 1988.

In its petition, dated April 2, 1991, the owner contends that the
order  was  improper because the owner is not required under  the
Rent Stabilization Code to file the annual apartment registration
other than by first class mail, for which no proof of service can
be  established.  The petitioner notes that Section 2528.2(d)  of
the  Code  only requires proof for the initial registration,  but
does  not  require it thereafter.  The petition further  contends
that  registration for 1986 is established by the fact  that  the
DHCR  granted the owner's MCI application, under Docket  No.  ZAF
130058-OM,  effective February 1, 1988, and  that,  according  to
DHCR  Policy  Statement  90-9, the application  would  have  been
dismissed  if the owner had failed to register.  On the  question
of   the  costs  of  equipment,  the  owner  contends  that   the
Administrator  should  have permitted  the  full  amount  of  the
claimed  cost,  and that the proof that the owner had  submitted,
including   cancelled  checks,  has  repeatedly  been   held   as
sufficient  by the courts.  Furthermore, the petition  continues,
the  Administrator  should not have imposed  treble  damages  for
failing  to verify the cost of the equipment.  Included with  the
petition  are  numerous  invoices and cancelled  checks  for  the
claimed  improvements,  and a DHCR instruction  manual  for  rent
registration for 1986.

The  Commissioner is of the opinion that this petition should  be
denied.

Section 2528.4(b) of the current Rent Stabilization Code provides
that  the  failure of an owner to timely file an Annual Registra-
tion  statement  shall, until such time as such  registration  is
completed, bar an owner from applying for or collecting any  rent
in  excess of the legal regulated rent in effect on April 1st  of
the  year  for  which an annual registration was required  to  be
filed.

The  record  in the instant case establishes that the  owner  has
failed  to prove that it had filed Annual Registration Statements
for  the subject premises for 1986, 1987 and 1988.  Although  the
owner  raises the issue of the form of proof of service  that  is
required  under  the Code, and in published instructions  of  the
DHCR,  such  considerations are meaningless in the  instant  case
because the owner offers no proof of filing of any kind.  Even on
appeal,   the  owner  submits  no  owner's  copy  of   the   1986
registration, without which, it must be stated, the  lawful  rent
cannot  be  increased  even  if filings  are  completed  for  all
succeeding  years.  With respect to the question of the  cost  of
equipment,  the owner submits cancelled checks and  invoices  for
various  claimed items with the petition, but does not  give  any
reason at all for its failure to timely submit such documentation
to  the  Administrator.  It is well established that new evidence
cannot  be accepted on appeal when the owner had such opportunity
to submit it into the record below (Accord: ARL 08403-L).

Finally,  the owner's objection to the assessment of treble  dam-
ages  because  of its failure to prove the cost of  equipment  is
inappropriate  when, as in the instant case, all overcharges  are
actually   based   on  the  owner's  failure   to   file   annual
registrations.

The  owner is advised to complete the filing of the annual regis-
tration  for the years 1986, 1987 and 1988 in order to effectuate
the prospective increase of the lawful rent as of the date of the
completion  of  such  registrations, in accordance  with  Section
2528.4 of the Rent Stabilization Code.



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, pursuant to the Rent Stabilization Law and Code, it is

ORDERED, that the petition be, and the same hereby is, denied,
and that the Administrator's order be, and the same hereby is,
affirmed.


ISSUED:




ELLIOT SANDER
                                         Deputy Commissioner
    

TenantNet Home | TenantNet Forum | New York Tenant Information
DHCR Information | DHCR Decisions | Housing Court Decisions | New York Rent Laws
Disclaimer | Privacy Policy | Contact Us

Subscribe to our Mailing List!
Your Email      Full Name