FE 110456-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. FE 110456-RO

                                          :  DISTRICT RENT OFFICE
                                             DOCKET NO. CF-110247-R
           36-08 Queens Realty,             
                                             TENANT: George Fuhrman           
              
                            PETITIONER    : 
      ------------------------------------X                             


           ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW


      On May 7, 1991, the above-named petitioner-owner filed a Petition for 
      Administrative Review against an order issued on April 2, 1991, by the 
      Rent Administrator, Gertz Plaza, Jamaica, New York, concerning the 
      housing accommodations known as 36-08 29th Street, Long Island City,
      New York, Apartment No. 2J, wherein the Rent Administrator determined 
      that the owner had overcharged the tenant.

      The Administrative Appeal is being determined pursuant to the provisions 
      of Section 2526.1 of the Rent Stabilization Code.

      The issue herein is whether the Rent Administrator's order was 
      warranted.

      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 in June 1988.  The tenant took 
      occupancy pursuant to a one year lease commencing July 1, 1986 and 
      expiring June 30, 1987 at a monthly rent of $450.00.

      The owner asserted before the Administrator that it installed new 
      equipment during the tenancy of the prior tenant.  The owner submitted 
      bills and cancelled checks for the improvements.  The owner alleged it 
      obtained the prior tenant's consent to increase his rent for these 
      improvmements.  In response the tenant questioned the authenticity of 
      the bills and cancelled checks submitted by the owner.  The tenant 
      questioned a bill dated November 8, 1985 from "H. Soloway, Plumbing and 
      Heating Compancy Inc." by stating that it appeared to be fraudulent and 
      contained no signature.  In addition the tenant alleged that the prior 
      tenant did not get a new refrigerator because he found an old 
      refrigerator in the apartment when he took occupancy.








          FE 110456-RO

      In Order Number FE-410456-RO, the Rent Administrator established the 
      lawful stabilized rent as $339.08 effective April 1, 1984, determined 
      that the tenant had been overcharged and directed a refund to the tenant 
      of $9,650.48 including treble damages.

      In this petition, the owner contends in substance that the owner took 
      lawful guideline increases and should be given credit for new equipment 
      installed in the tenant's apartment.  The owner further contends that 
      treble damages should not be imposed even if the Administrator denied it 
      any increase for the new equipment as this was a "hypertechnichal 
      error."

      In answer to the owner's petition, the tenant raised additional 
      allegations concerning the owner's documentation. 

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

      Section 2522.4(a)(1) of the Code provides that where there had been an 
      installation of new equipment in a stabilized apartment, the monthly 
      stabilization rent for said unit may be increased by 1/40th the cost of 
      such equipment provided the tenant then in occupancy has consented 
      thereto in writing.  In addition, the courts have ruled that an increase 
      for new equipment installed during a vacancy prior to the commencement 
      of a new tenancy or upon the commencement of a new tenancy and reflected 
      in the lease rent, may be collected without the new tenant's consent to 
      pay such increase.  (Matter of LeHavre Corp. v. Gribetz, et. al., 
      N.Y.L.J., January 20, 1971, p. 19, col. 8 (Sup. Ct., Queens Co., 
      Crisona, J.); Matter of Morton I. Hamberg v. CAB, N.Y.L.J., November 9, 
      1972, p. 18 col. 8, (sup. Ct., N.Y.Co., Sarafite, J.).

      An examination of the record in this case discloses that the owner 
      failed to obtain the prior tenant's written consent for new equipment 
      allegedly installed in the apartment.  Accordingly, the owner could not 
      properly charge the prior tenant for these items.

      Section 26-516 of the Rent Stabilization Law provides that any owner who 
      is found by the DHCR to have collected an overcharge shall be liable to 
      the tenant for treble damages unless the owner establishes by a 
      preponderance of the evidence that the overcharge was not willful, in 
      which case interest shall be imposed.   Section 26-516 also provides 
      that treble damages shall be applied only to overcharges occurring on or 
      after April 1, 1984.

      In the instant case, besides the fact that the tenant challenged the 
      authenticity of the owner's bills and cancelled checks, the owner should 
      have known it could not charge the prior tenant for new equipment 
      without written consent from the prior tenant.  The owner filed a 
      registration statement which clearly states that no such increase is 
      allowed without the tenant's written consent.  Accordingly, the 
      Commissioner finds an award of treble damages was justified in this case 
      and the Rent Administrator's order was warranted.

      Because this determination concerns lawful rents only through March 31, 
      1991, the owner is cautioned to adjust subsequent rents to an amount no 
      greater than that determined by the Rent Administrator's order plus any 
      lawful increases, and to register any adjusted rents with this order and 
      opinion being given as the explanation for the adjustment.



          FE 110456-RO

      This order may, upon the expiration of the period in which the owner may 
      institute a proceeding pursuant to Article 78 of the Civil Practice Law 
      and Rules, be filed and enforced in the same manner as a judgment or not 
      in excess of twenty percent per month thereof may be offset against any 
      rent thereafter due the owner.

      THEREFORE, in accordance with the provisions of the Rent Stabilization 
      Law and Code, it is

      ORDERED, that this petition for administrative review be, and the same 
      hereby is, denied, and, that the order of the Rent Administrator be, and 
      the same hereby is, affirmed.


      ISSUED:



                                                                    
                                      JOSEPH A. D'AGOSTA
                                      Acting Deputy Commissioner






    

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