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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.: FG 210176 RO
ALEKSANDRA CHODOWIEC, DISTRICT RENT ORDER
DOCKET NO.: CF 210059-R
PETITIONER
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On July 18, 1991 the above-named petitioner-owner filed a Petition
for Administrative Review against an order issued on June 21, 1991
by the Rent Administrator, 92-31 Union Hall Street, Jamaica, New
York concerning housing accommodations known as 161 Java Street,
Brooklyn, New York, Apartment 8.
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 commenced on June 3, 1988 by the tenant filing
a complaint of rent overcharge. The tenant took occupancy of the
subject apartment pursuant to a lease commencing July 15, 1980 and
expiring July 15, 1981 at a monthly rent of $180.00.
In the herein appealed order, the Rent Administrator established
the legal stabilized rent based on a finding that the owner had
failed to submit a complete rental history for the subject
apartment, including proof of initial registration, and directed a
refund of $36,607.54, including treble damages on overcharges
collected after April 1, 1984, to the tenant.
In this petition, the owner contends that she never received the
May 16, 1991 information request referred to in the Rent
Administrator's order and does not know what information was
requested. The owner further contends, in substance, that the
initial registration was filed, that costs for various
improvements and new equipment should be included in the rent
calculation, that the assessment of treble damages is prohibited
when equipment costs are unsubstantiated, that there was no
willfulness involved and that the tenant was in fact undercharged
and therefore, there was no overcharge.
On appeal, the owner submitted copies of contracts, bills,
invoices and cancelled checks to substantiate the costs of
improvements and new equipment, copies of apartment registration
forms dating from 1984 and copies of leases.
In response to the petition the tenant asserts, in substance, that
the owner has not submitted sufficient proof of payment for the
claimed improvements, that certain improvements were building-wide
improvements for which the owner should have filed MCI
applications, that bathroom improvements were made without tenant
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consent and that the owner did not properly register the subject
apartment until 1988.
In reply to the tenant's response, the owner raised complaints
about the tenant's use of an air conditioner and washing machine
and the power consumption in the subject apartment.
The Commissioner is of the opinion that this petition should be
denied.
A review of the record indicates that on May 16, 1991, the owner
was served with a final notice of pending default advising that
she had failed to provide the required evidence and providing her
a final opportunity to do so. There is no indication in the
record that said notice was returned from the Post Office as
undelivered.
Regarding the owner's contention that she did not know what
information was requested, the record shows that on March 13,
1991, the owner was served with a notice directing her to submit
the following:
1. A copy of the initial registration for the subject
apartment with proof of service on the tenant in
occupancy on April 1, 1984;
2. proof of filing of the 1985 annual registration;
3. documentation to substantiate claimed improvements
and/or new equipment installed in the subject
apartment;
4. Major Capital Improvement (MCI) information; and
5. a rental history dating from April 1, 1984.
The Commissioner notes that the owner responded to the March 13,
1991 notice by submitting copies of leases dating from July 15,
1986 and copies of registration forms for the subject apartment
dating from 1987.
Regarding the owner's contention that the initial registration
form for the subject apartment had been filed, DHCR records
indicate that the form filed contained erroneous information,
i.e., the tenant named in the initial registration is not the
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subject tenant, who took occupancy of the subject apartment
pursuant to a lease commencing July 15, 1980. The copy submitted
by the owner reveals the same information. Accordingly, the Rent
Administrator properly determined that the subject apartment was
not initially registered as required and, based thereon, properly
established the legal regulated rent.
Regarding the owner's contention that costs for improvements and
new equipment should be included in the overcharge calculations,
the Commissioner notes that during the proceeding before the Rent
Administrator the owner was directed to submit documentation to
substantiate the claimed improvements and/or new equipment and
failed to do so. The owner submits documentation on appeal but
fails to adequately explain the failure to produce said
documentation below. Therefore, the owner will not be permitted
to submit this documentation for the first time on appeal.
The Commissioner notes that even if the documentation submitted by
the owner were acceptable on appeal, it is insufficient to
establish the owner's entitlement to rent increases: there is no
indication that the owner received written consent from the tenant
for various claimed improvements (bathroom, kitchen, windows) made
in the subject apartment during the tenant's occupancy; various
claimed improvements (stucco work, water main work, replacement of
building wall) are not related to the subject apartment and
therefore, cost related thereto are not a factor in determining
the subject tenant's rent; costs of various claimed improvements
(installation of vents, steel doors) are not sufficiently
substantiated.
Regarding the owner's contention that the assessment of treble
damages is prohibited when new equipment costs are
unsubstantiated, the Commissioner notes that in this case, the
owner has failed to submit documentation sufficient to establish
entitlement to rent increases and therefore, no rent increase can
be authorized for any such installations. The Commissioner
further notes that a minor portion of the overcharge was due to
the failure to substantiate the claimed installations and is of
the opinion that the owner has failed to establish that the
overcharge was not willful. Therefore, the Commissioner finds
that the Rent Administrator properly imposed treble damages.
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 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 Rent Stabilization Law and Code,
it is
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ORDERED, that this petition be, and the same hereby is, denied,
and that the Rent Administrator's order be, and the same hereby
is, affirmed.
ISSUED:
JOSEPH A. D'AGOSTA
Deputy Commissioner
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