FD 110009 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
APPEAL OF ADMINISTRATIVE REVIEW
DOCKET NO.: FD 110009 RO
HARBEN MANAGEMENT COMPANY,
DRO DOCKET NOS.: CE 110270-R
TENANT: SABAHATHN SUNGU
PETITIONER
----------------------------------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 6J at 43-55 Kissena Boulevard, Queens, New York
wherein the District Rent Administrator determined that the tenant
had been overcharged in the amount of $10,194.00 including treble
damages and excess security.
The applicable sections of the law are Sections 2528.3(b) and
2528.4(b) of the Rent Stabilization Code.
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 May 16, 1988.
The tenant took occupancy pursuant to a two year lease commencing
March 15, 1984, and expiring March 14, 1986, at a monthly rent of
$500.00
The owner was served with a copy of the complaint and was directed
to submit a complete rent history from the base date, including
FD 110009 RO
copies of all leases. The owner complied with this request.
The tenant submitted copies of all cancelled checks to document the
amount of rent he has paid throughout his tenancy.
In Order No. CE 110270-R, issued on February 26, 1991, the Rent
Administrator determined that the tenant had been overcharged in
the amount of $10,194.00, including treble damages for overcharges
collected as of two years before the date the complaint was filed,
and thereafter, interest on overcharges collected prior to the
effective date of treble damages, and excess security. The order
also stated that the 1984 initial registered rent of $500.00 per
month was properly registered, but that since the owner did not
file annual registrations for 1985 and 1990, the lawful rent was
frozen at that amount. It was also determined that the owner had
unlawfully increased the rent to $530.00 per month in the four-
month period from December 1985 through March, 1986.
In its petition, the owner contends that it had properly filed the
annual registrations for the years 1985 and 1990 through its
participation in the Rent Stabilization Association, which performs
this function for its membership. Enclosed with the petition are
copies of two affidavits from H. Malka Louzoun, counsel to the Rent
Stabilization Association, (RSA) swearing to his mailing of the
annual apartment registrations for 1985 and 1990, respectively, in
bulk postal delivery, to the stabilized tenants of the subject
building. Also enclosed were the RSA apartment mailing lists for
those years which listed mailing dates of May 23, 1986 and July 11,
1990, respectively. Finally, the owner objects to the finding that
the tenant paid rent of $530.00 for the period from December, 1985
through March, 1986, when its own records document payment of the
lawful rent of $500.00.
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 owner's failure to properly and timely comply with the
annual rent registration requirements shall bar the owner from
applying for or collecting any rent in excess of:
(b) the legal regulated rent in effect on April
first of the year for which an annual
registration was required to be filed, or such
other date of that year as may be determined
by the DHCR pursuant to section 2528.3 of this
Part.
Although the owner claims to have duly registered the subject
apartment in 1985 and 1990, it is unable to provide documentation
to verify this. There are no registrations of the subject
apartment on file with the DHCR for those years. The owner has
FD 110009 RO
submitted affidavits for the years 1985 and 1990, but failed to
submit copies of the registrations themselves and the apartment
list accompanying the 1990 affidavit does not list the subject
apartment. Moreover, the affidavits only affirm that the
registrations were mailed to the tenant, but say nothing about
filing them with the DHCR. The owner is thus unable to show that
the DHCR's records indicating no registration filed for 1985 or
1990 are inaccurate, or that the Administrator was in error.
Finally, the owner's objection to the Administrator's finding that
the tenant paid $530.00 per month from December, 1985 to March,
1986 is not supported by evidence. It is noted that the tenant
submitted copies of the cancelled checks which validate the
Administrator.
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 or not in excess of twenty
percent thereof per month may be offset against any rent thereafter
due the owner.
THEREFORE, pursuant to the Rent Stabilization Law and Code, it is
ORDERED, that this Petition be, and the same hereby is, denied; and
that the Administrator's order be, and the same hereby is,
affirmed.
ISSUED:
------------------------
JOSEPH A. D'AGOSTA
Acting Deputy Commissioner
|