FE 210336 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 210336 RO
DISTRICT RENT OFFICE
Anna Rosenblum, DOCKET NO.: ZCG 210286 R
TENANT: Josseth Perry
PETITIONER
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ORDER AND OPINION GRANTING IN PART PETITION FOR
ADMINISTRATIVE REVIEW
On May 29, 1991, the above-named petitioner-owner filed a
Petition for Administrative Review against an order issued on
April 24, 1991, by the Rent Administrator, 92-31 Union Hall
Street, Jamaica, New York, concerning the housing accommodations
known as 975 Washington Avenue, Brooklyn, New York, Apartment
No. 2A, wherein the Rent Administrator determined that the owner
had overcharged the tenant.
The Commissioner has examined all of the evidence in the record
and has carefully considered that portion of the record relevant
to the issue raised in the administrative appeal.
The tenant commenced this proceeding on July 2, 1988 by filing a
complaint of rent overcharge.
In response to the tenant's complaint, the owner stated that
although it had challenged the earlier issued Order Number CDR
24,921 which had established the lawful rent, the rent being
collected was based upon the rent established in the challenged
order.
On August 15, 1989, while this matter was pending, the
Commissioner determined the owner's appeal of the prior order,
granting the appeal in part and modifying the lawful
stabilization rent. Subsequently, the owner advised that she
had adjusted the rent established in the Commissioner's order of
August 15, 1989 and that she had tendered a refund.
In the order issued on April 24, 1991, the Administrator
determined that the tenant had been overcharged in the amount of
$2,415.31 inclusive of interest on the overcharge covering the
period March 1, 1985 through October 23, 1986 and treble damages
on the overcharge occurring thereafter.
In requesting that the order be reversed, the owner contends
1) that all overcharge were refunded; 2) that the Administrator
FE 210336 RO
erred in applying the Collingwood Rule (the collection by an
owner of rent in a lesser amount than would be legally
permissible results in a permanent waiver of the greater amount)
to roll back the legal rent because the rent collected had been
ordered in the appealed order; 3) that the imposition of treble
damages was unwarranted pursuant to Policy Statement 89-2 because
the owner had refunded all overcharges; 4) since the owner had
submitted rent records from 1980, no overcharge should have been
found in the previous proceeding; therefore, the owner requests
that the prior docket be reopened and reconsidered in light of
the determination in JRD Management Inc. v Eimicke 539 N.Y.S 2d
667 (app. Div. 2d Dept, 1989).
In response, the tenant requests that the owner's appeal be
denied and that the overcharge calculation be updated.
The Commissioner is of the opinion that this petition should be
granted in part.
Application of the Collingwood Rule entails a voluntary waiver
of a higher rent. Such willingness cannot be implied in the
instant case. The rent from May 1, 1987 through September 30,
1989 was collected in compliance with Order Number K-3105563 R,
CDR 24,921 which was not modified until August 15, 1989 under
Docket No. AK 210241 RO. The owner was constrained to comply
with the rent established under the prior order until the legal
rent was modified by the order granting the appeal in part.
Accordingly, the Administrator erred in rolling back the rent
from $302.44 to $256.16 under the Collingwood Rule. Restoring
that rent, the Commissioner finds no overcharge occurred in the
period beginning March 1, 1989 through February 28, 1991 and
therefore eliminates the treble damages penalty attached thereto.
Resolution of whether the remaining treble damage penalty was
properly imposed requires examination of the refund tendered by
the owner to determine if the owner had fully complied with the
requirements enunciated in Policy Statement 89-2.
Review of the record reveals that the owner reconciled the refund
due to the tenant with rent arrears, caused by the ordered rent
modification and tendered $487.15 in full settlement of the
actual overcharges of $299.69 in this proceeding and overcharges
of $972.70 as determined in order number AK 210241 RO.
Accordingly, the Commissioner finds that treble damages are not
warranted.
Consistent with the Commissioner's prior order and opinion issued
on August 15, 1989 under docket no. AK 210241 RO which set the
legal regulated rent at $229.09 effective March 1, 1982 to
February 28, 1985 and in accordance with appropriate guideline
increases since then, the Commissioner establishes the legal rent
at the amount collected by the owner from October 1, 1989 to
February 28, 1991, $322.76.
The Commissioner's order under Docket Number AK 210241 RO was a
final determination for which judicial review was not sought. It
cannot now be reopened. Accordingly, that part of the owner's
appeal which requested reopening in accordance with the JRD
FE 210336 RO
determination is denied.
The record contains no evidence of further overcharges,
therefore, the tenant's request for an updating is denied.
THEREFORE, in accordance with the Rent Stabilization Law and
Code, it is
ORDERED, that this petition be, and the same hereby is, granted
in part, and the Rent Administrator's order be, and the same
hereby is, modified in accordance with this order and opinion.
ISSUED:
JOSEPH A. D'AGOSTA
Acting Deputy Commissioner
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