DOCKET NO.: FE 110022 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.: FF 110022 RO
James Brocad D.R.O DOCKET NO.
DOCKET NO.: CD 110408 R
PETITIONER
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On May 3, 1991 the above-named petitioner filed an
Administrative Appeal against an order issued on April 15, 1991
by the District Rent Administrator, 92-31 Union Hall Street,
Jamaica, New York, concerning the housing accommodations known as
31-66 38th Street, Queens, New York, Apt 3F.
The Administrative Appeal is being determined pursuant to
the provisions of 9 NYCRR 2526.1(a)(1).
The issue herein is whether the Rent Administrator's
determination of willful rent overcharge was warranted.
The Commissioner has reviewed all of the evidence in the
record and has carefully considered the portion of the record
relevant to the issue raised by the Administrative Appeal.
This proceeding was commenced on April 20, 1988 by the
tenant filing a general overcharge complaint.
The owner responded by filing a rent history including all
leases of the subject apartment from 1984 to date and the
corresponding annual apartment registrations.
The owner also submitted a copy of a building-wide Major
Capital Improvement Order No. Z-Q 000293-OM.
DOCKET NO.: FE 110022 RO
There was also evidence that the owner had been allowed an
increase for installation of a new refrigerator with tenant
consent in June 1986.
On April 15, 1991 the Rent Administrator issued the subject
order finding a rent overcharge.
The significant findings were that the owner raised the rent
$12.00 for the individual improvement of a new refrigerator in
June 1986; that the owner could have received a $12.40 increase
representing 1/40 of $496.30 ($476.30 cost of new refrigerator
and $20.00 removal of old refrigerator); and that the owner
waived his rights to the $ .40 when he did not timely charge it.
The owner was found to have overcharged the tenant $ .50
per month from January 1988 and continuing for 23 months for a
total of $11.50 due to his failure to remove a temporary
increase from the base rent by December 31, 1987.
Further, the owner was found to have overcharged the tenant
$ .73 per month from December 1989 and continuing for 17 months
for a total of $12.41 due to his continued failure to remove the
temporary increase from the base rent before the subsequent
increase.
The Rent Administrator found treble damages of $71.83 due to
a finding that the owner's overcharge was wilful.
In his Petition for Administrative Review the owner argued
that his oversight in charging the full increase for the
refrigerator should negate the finding of willful overcharge for
continuing the temporary $. 50 increase in the base rent beyond
December 1987.
After a careful consideration of the entire evidence of
record, the Commissioner is of the opinion that the owner's
administrative appeal should be denied.
As the owner previously waived the $ .40 increase for
removal of the old refrigerator, it may not be resurrected to
offset the subsequent overcharge.
Section 2526.1(a)(1) of the Rent Stabilization Code
provides in substance that treble damages shall be imposed on
overcharges occurring on and after April 1, 1984 unless an owner
establishes by a preponderance of the evidence that the
overcharge was not willful. The Commissioner does not consider
the owner to have rebutted the presumption of willfulness, so
treble damages have been imposed.
DOCKET NO.: FE 110022 RO
THEREFORE, in accordance with the Rent Stabilization Law and
Code, it is
ORDERED, that this petition be, and the same hereby is,
denied and that the District Rent Administrator's order be, and
the same is affirmed.
ISSUED:
JOSEPH A. D'AGOSTA
Deputy Commissioner
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