FD 610014-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
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IN THE MATTER OF THE ADMINISTRATIVE ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.:
FD 610014-RO
MORRIS AVENUE ASSOCIATES,
DRO DOCKET NO.:
PETITIONER CJ 610113-R
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On April 4, 1991, the above named petitioner-owner filed a
Petition for Administrative Review against an order issued on
March 6, 1991, by a Rent Administrator concerning the housing
accommodation known as Apartment 2-B at 1704 Morris Avenue,
Bronx, New York, wherein the District Rent Administrator deter-
mined that the tenant had been overcharged in the amount of
$1,733.06, 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 October 3, 1988.
The tenants took occupancy pursuant to a one year lease
commencing August 1, 1988, and expiring July 31, 1989, at a
monthly rent of $358.06.
The owner was served with a copy of the complaint and was di-
rected to submit a complete lease history from the base date,
including copies of all leases. The owner complied with this
request.
In Order No. CJ 610113-R, issued on March 6, 1991, the
Administrator determined that the tenant had been overcharged in
the amount of $1,733.06, including treble damages and excess
security.
The initial overcharge of $15.02 per month had occurred in the
two-year renewal lease of the prior tenant, executed under
Guidelines 18. It resulted from the owner's erroneous inclusion
of a $15.00 supplement for low rents that had already been
included in the prior lease, under Guidelines 17, but which could
not be collected in two successive guidelines.
In its petition, dated March 27, 1991, the owner contends that
the imposition of treble damages is improper because the sole
cause of the overcharges was the owner's "mistaken belief" that
he was entitled to the $15.00 supplement. The owner states that
he "was not apprised of the fact" that the low-rent supplements
cannot be repeated if they had already been collected in the
lease under the prior Guidelines Order. Such a mistake must be
considered a mere "hypertechnical computational error" which, as
defined in DHCR Policy Statement 89-2, are not consistent with
the "willfulness" standard that is required for the treble
damages penalty.
The Commissioner is of the opinion that the owner's petition
should be denied.
Although Policy Statement 89-2 does list certain errors in the
computation of the lawful rent which, because of their "hyper-
technical nature", tend to prove that the resulting overcharges
were not willful, the error in the instant case is not included
on that list, nor has the Commissioner ever afforded it their
equivalency. The guidelines do not make the proscription against
taking the supplement in successive guidelines any more difficult
to discover then the supplement itself, and thus no lack of
willfulness can be inferred when it is conveniently overlooked.
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 Practive 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 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
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