FH 510043 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.: FH 510043 RO
DRO DOCKET NO.: DC 510121 R
SEADYKE REALTY,
TENANTS: CARL FRYE
AND
PETITIONER PATRICIA FREEBERRY
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On August 12, 1991, the above-named petitioner-owner filed a
Petition for Administrative Review against an order issued on July
8, 1991 by the Rent Administrator, 92-31 Union Hall Street,
Jamaica, New York concerning the housing accommodations known as 5
Seaman Avenue, Apartment 1G, New York, New York wherein the
Administrator determined that the tenant had been overcharged.
The Commissioner has reviewed all of the evidence in the record and
has carefully considered that portion of the record relevant to the
issues raised by the administrative appeal.
This proceeding was originally commenced by the filing on March 8,
1989 of a rent overcharge complaint by the tenant.
In answer to the tenant's complaint, the owner stated in substance
that all rent increases collected were approved as either guideline
increases or increases for Major Capital Improvements (MCI's) and
submitted a rent history from December 1, 1983.
In the order here under review, the Administrator determined that
the tenant had been overcharged in the amount of $4,753.94
inclusive of excess security and treble damages.
In the appeal, the owner contends that the order should be reversed
because the Administrator erred in the following respects:
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1) in calculating the MCI increases;
2) in disallowing a $5.00 per month air conditioner
charge; and in assessing treble damages.
After careful consideration, the Commissioner is of the opinion
that this petition should be denied.
Review of the record reveals that the Administrator calculated the
permissible MCI rent increase correctly. Based upon various major
capital improvements the owner was granted, pursuant to order
number OM 4913 Z, a total MCI rent increase of $10.73 per each
$100.00 of rent paid effective December 1, 1983, collection to
begin January 1, 1986. In the MCI order, the owner was advised of
the methodology to use in collecting the permanent rent increase
and the temporary arrears increase. Proper application of the
schedules provided to the owner results in the correct calculation
of the rent in accordance with the 6% per year limitation for MCI
increases per year. The rent calculation chart included with the
order demonstrates the proper calculation of the lawful
stabilization rent, taking into account all guidelines increases,
MCI permanent rent increases, and MCI temporary arrears increases.
Six percent of the permanent increase ($21.00) was included in the
lawful stabilization rent in January 1, 1986 and the remainder of
the permanent increase ($16.56) was included in January 1987.
Temporary arrears increases, each of which was collectible for only
twelve months, were included in January 1, 1986 ($21.00), January
1, 1987 ($21.00), January 1, 1988 ($21.00), and in January 1989
($15.23). In accordance with the Rent Stabilization Code, no
further rent increases were permitted during the period at issue.
The Commissioner notes that the Administrator correctly limited the
legal stabilization rent to the rent charged by the owner in those
instances where the rent charged was less than could have been
charged.
Pursuant to Supplement Number 1 to Operational Bulletin 84-4, an
owner may charge a tenant $5.00 per month per air conditioner,
where the tenant installs his own air conditioner, which protrudes
beyond the window line, and pays for his own electricity and the
installation of the air conditioner will result in damages to the
owner's property. This charge applied to air conditioners
installed on and after October 1, 1985. Since the instant air
conditioner was installed in 1984 but the owner did not seek
payment until June 1, 1986, the owner is regarded as having waived
the increase and was correctly precluded from collecting this
amount.
Section 26-516 of the Rent Stabilization Law imposes a penalty of
treble damages for all willful overcharges. The statute creates a
presumption of willfulness overcome only by the owner affirmatively
showing non-willfulness by a preponderance of the evidence. Since,
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in the instant case, the owner did not meet its burden, the
Administrator did not err in assessing treble damages.
Accordingly, the Commissioner finds that the Administrator
correctly established the lawful stabilization rent at $516.47 as
of December 1, 1990 and correctly directed a refund of $4,753.94
inclusive of excess security and 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 in the same
manner as a judgment.
Since the complaining tenant has vacated the subject premises, a
copy of this order is being sent to the current tenant.
THEREFORE, in accordance with the Rent Stabilization Law and Code,
it is
ORDERED, that this petition be, and the same hereby is, denied, and
the Rent Administrator's order be, and the same hereby is,
affirmed.
ISSUED:
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JOSEPH A. D'AGOSTA
Acting Deputy Commissioner
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