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.:
DRO DOCKET NO.:
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
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
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
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,