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
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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 :
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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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