DOC. NO.: FE 510425-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 510425-RO
                     L & L REALTY            :  DISTRICT RENT ADMINISTRATOR'S
                                  PETITIONER :  DOCKET NO. CF 510248-R
         ------------------------------------X  TENANT: ROSA RAMOS


              ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
                                         IN PART

                              
         On May 29, 1991 the above named petitioner owner filed a Petition for 
         Administrative Review against an order of the Rent Administrator 
         issued May 17, 1991.  The order concerned housing accommodations known 
         as Apt. D-14 located at 9-23 Thayer Street, New York, N.Y.  The 
         Administrator determined that the tenant had been overcharged and 
         directed the owner to refund $1910.94 including treble damages and 
         excess security.

         The Commissioner has reviewed the record and carefully considered that 
         portion relevant to the issues raised by this appeal.

         The tenant commenced this proceeding by filing a rent overcharge 
         complaint on June 14, 1988.  The tenant, a recipient of "Section 8" 
         subsidized housing assistance, took occupancy of the subject apartment 
         on August 15, 1980 at a rent of $209.00 per month for two years.  She 
         signed three subsequent renewal leases.  She stated that the owner did 
         not properly respond to her request for information regarding rent 
         charges and that she required such documentation for public assistance 
         purposes.  The owner filed an answer wherein it was stated that an 
         attempt was made to explain the increases to the tenant but she could 
         not comprehend the explanation.  The owner also submitted copies of 
         leases, registration statements for the subject apartment and two MCI 
         rent increase orders (Docket Nos. ZBC 530180-OM and ZBC 530181-OM) 
         which granted a total rent increase of $8.45 per room per month 
         effective August 1, 1988.

         The Administrator determined that the tenant was being overcharged and 
         computed the overcharge at $1910.94.  One component of that overcharge 
         amount was a $9.07 amount petitioner began collecting       on















         DOC. NO.: FE 510425-RO



         October 1, 1987.  That amount represented 1/40th of the cost of a new 
         refrigerator installed by the owner.  Although the owner presented a 
         receipt for the refrigerator, no signed consent by the tenant was 
         submitted.   The Administrator disallowed this increase due to lack of 
         evidence that the tenant gave written consent.

         On appeal the owner states that the tenant did in fact sign for a new 
         refrigerator but the owner "misplaced" the written consent and cannot 
         prove it exists.  Petitioner concedes that it is not entitled to this 
         increase but argues that the overcharge was not willful and, 
         therefore, treble damages should not have been imposed.  The tenant 
         did not file a response.

         After careful consideration of the evidence in the record the 
         Commissioner is of the opinion that the petition should be granted in 
         part.

         Pursuant to 9 NYCRR 2522.4(a)(1) for an owner to collect a rent 
         increase for improvements to an individual apartment, written consent 
         of the tenant must be shown.  In her rent history segment on the 
         complaint the tenant made no mention of consenting to an increase for 
         a refrigerator.  The burden of proof was on the owner to submit the 
         proper written consent.  By its own admission, such burden cannot be 
         met.  The Administrator was correct in disallowing this increase.

         Petitioner argues that, though it is not entitled to this increase, 
         there was no intent to overcharge and, therefore, treble damages 
         should not have been imposed.  The policy of the Division permits the 
         Administrator to impose interest on overcharges attributable to 
         increases for equipment for which the owner has a receipt but not the 
         tenant's written consent.  Since the petitioner has submitted such a 
         receipt to the Administrator the Commissioner grants the petition to 
         the extent of revoking the penalty of treble damages.  The revised 
         amount of overcharges including interest is explained in the annexed 
         rent calculation chart.  The Administrator's order is modified to 
         reflect the recalculated amount which is computed at $907.56.  The 
         tenant is advised that her actual rent remains as determined by the 
         Rent Administrator.
















         DOC. NO.: FE 510425-RO


         Since the tenant is a recipient of Section 8 rent subsidy benefits, a 
         copy of this order is being sent to the New York City Housing 
         Authority which may have a right to a portion of the overcharges 
         determined herein.  The tenant may credit no more than 20% of the 
         overcharge each month until the overcharge is fully credited but may
         be liable to the New York City Housing Authority for the portion of 
         the refund attributable to Section 8 benefits.

         THEREFORE, pursuant to the Rent Stabilization Law and Code it is

         ORDERED that this petition be, and the same hereby is, granted in part 
         and that the Rent Administrator's order be, and the same hereby is, 
         modified in accordance with this Order and Opinion.

         ISSUED:


                                                                              
                                                 JOSEPH A. D'AGOSTA
                                                 Deputy Commissioner

                                 








    

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