FH 610311 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 610311 RO
ITEM ASSOCIATES, DISTRICT RENT ADMINISTRATOR'S
DOCKET NO.: CL 610194 R
TENANT: JUANA PEREZ
PETITIONER
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On August 29, 1991 the above-named owner filed a Petition for
Administrative Review against an order issued on July 26, 1991 by
a Rent Administrator concerning housing accommodations known as
80 West 170th Street, Apartment 4D, New York, New York, wherein
the Administrator determined that the tenant had been
overcharged.
Subsequent thereto, the petitioner filed a petition in the nature
of mandamus in the Supreme Court pursuant to Article 78 of the
Civil Practice Law and Rules requesting the expeditious
determination of the administrative appeal.
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
December 21, 1988 of a rent overcharge complaint by the tenant in
which she stated that she had commenced occupancy on November 15,
1988 at a rent of $560.00 per month.
The owner filed an initial registration statement for the subject
premises effective April 1, 1984. The registration stated the
legal rent as $265.66.
The owner was served with a copy of the complaint and was
directed to submit a complete rent history from the month the
owner was first required to register the apartment or the month
four years prior to the most recent registration statement before
the tenant's complaint, whichever was later.
The owner failed to comply with this request.
On July 26, 1991 the Rent Administrator determined that the
tenant had been overcharged in the amount of $13,853.04,
including treble damages. The owner was directed to refund this
FH 610311 RO
amount to the tenant and to roll back the rent to $459.72 per
month, being the legal regulated rent in accordance with the
Administrator's calculations.
In its petition, dated August 26, 1991, the owner contends that
the legal rent should include the cost of renovations to the
subject-apartment that were completed immediately prior to the
occupancy of the complainant's mother in November, 1985. At a
total cost of $4,365.33, they accounted for nearly the entire
amount of the overcharges determined by the Administrator.
Furthermore, the petition continues, the imposition of treble
damages was improper because the Division of Housing and
Community Renewal (DHCR) has frequently found that overcharges
due to the failure to prove the actual cost of improvements is
not willful. Enclosed with the petition are documents referring
to the claimed renovations, including invoices and rent ledger
sheets from the owner's records.
The tenant responds that the owner has failed to prove that the
improvements were ever performed, and that all overcharges should
be considered willful because the owner had no grounds for
believing that it was charging the legal rent.
The Commissioner is of the considered opinion that this petition
should be denied.
The record in this case establishes that the owner failed to
submit the complete rent history, including documentation of the
improvements to the subject-apartment that were allegedly
completed during the vacancy period prior to the lease term
commencing November 15, 1985. Moreover, the documentation
submitted with the petition cannot be considered. The owner
fails to assert any reason for its failure to submit this
material into the record below and, as such, it is inadmissible
on appeal. It is also noted that the material that the owner did
submit below never even made mention of these alleged
improvements, and the Administrator had no reason to be aware of
them. Since the record below contains no basis for concluding
that the overcharges were not willful, the Administrator's
determination to impose treble damages was proper.
This order may, upon the expiration of the period in which the
owner may institute a proceedi g pursuant to Article Seventy-
Eight of the Civil Practice law and Rules, be filed and enforced
by the tenant in the same manner as a judgment or not in excess
of twenty percent thereof per month may be offset against any
rent thereafter due the owner.
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 Administrator's order be, and the same hereby is,
affirmed.
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ISSUED:
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JOSEPH A. D'AGOSTA
Deputy Commissioner
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