FK 110192 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. FK 110192 RO
: DRO DOCKET NO. BI 110260 R
Loumat Realty Company,
TENANT: Michael Silvers
PETITIONER :
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ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
IN PART
On November 12, 1991, the above-named petitioner-owner filed a Petition
for Administrative Review against an order issued on October 24,
1991, by the Rent Administrator concerning the housing accommodations
known as 69-11 Yellowstone Boulevard, Forest Hills, New York, Apartment
No. B52, wherein the Rent Administrator determined that the owner had
overcharged the tenant.
The Administrative Appeal is being determined pursuant to the provisions
of Section 2526.1 of the Rent Stabilization Code.
The issue herein is whether the Rent Administrator's order was
warranted.
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.
On January 23, 1974 the subject apartment was decontrolled, based on a
finding that the tenant was not occupying the premises as his primary
residence. All leases and renewals offered to the tenant by the owner
during the period commencing May 29, 1974 and terminating April 1, 1984,
when the registration requirement was initiated, were in conformance
with rent stabilization. On June 1, 1984 the owner filed the apartment
registration with the DHCR, listing the apartment as "exempt" from the
rent stabilization laws because it was a "2nd Residence." The owner
then commenced a holdover proceeding against the tenant, in
Landlord/Tenant Court, in the County of Queens (Index No. L & T
45740/8).
In August 1985 the tenant filed a complaint with the Division, alleging
that the owner had failed to renew his lease. In November 1986 the
Division issued a conditional dismissal of the tenant's complaint,
stating that the tenant may reinstitute proceedings should the owner
fail to offer a renewal lease following a judicial determination in the
tenant's favor.
During the pendency of the Housing Court determination, the owner failed
to register the apartment, claiming that to have registered it as
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stabilized would have prejudiced his case (1985 and 1986 registrations).
The decision on March 31, 1986 by Judge J. Golia was that the tenant was
protected by the Rent Stabilization Law, and had been so protected from
the date of decontrol, January 23, 1974; and the tenant was to be
offered a renewal lease.
The owner timely filed annual registration statements for 1987 through
1991.
This proceeding was originally commenced by the filing in September,
1987 of a rent overcharge complaint by the tenant.
In response to DHCR notices, the owner stated in substance that he had
not been advised that he must file a rent registration statement during
the pendency of his court case, and that his failure to register was in
good faith, not willful default requiring the imposition of treble
damages.
Under Docket No. BI-110260-R, the Rent Administrator determined that the
tenant had been overcharged in the amount of $11,638.88, and directed
the owner to refund such overcharge to the tenant as well as to reduce
the rent.
In this petition, the owner contends in substance that the Administrator
apparently did not consider its answer in the proceeding below, and
requested reversal of the determination.
The Commissioner is of the opinion that this petition should be granted
in part.
The envelope indicates that the owner's answer to the Division's final
notice was mailed on October 22, 1991, but the answer did not reach the
Administrator's file prior to the issuance of the Administrator's order
on October 24, 1991; it was date-stamped received by the DHCR on October
25, 1991.
D.H.C.R. Policy Statement 89-2 states, in pertinent part; the owner must
prove by a preponderance of the evidence that the overcharge was not a
willful act.... "The owner can submit such evidence after receiving
notice of a tenant's filing of an overcharge complaint prior to the
final order being issued." Since this submission was mailed prior to
the issuance of the Administrator order but did not reach the
Administrator prior to issuance of the order, it may be considered on
appeal.
The Commissioner finds that the evidence submitted by the owner
establishes a lack of willfulness. Accordingly, the penalty of treble
damages will not be assessed. Rather pursuant to Section 2526.1 of the
Rent Stabilization Code, interest will be assessed on all overcharges
occurring on or after April 1, 1984.
The revised calculation of overcharges is as follows: overcharges of
$3845.54, plus interest at the rate of 9 per cent, or $697.58, plus
excess security of $102.26, results in a total overcharge of $4645.38.
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Because this determination concerns lawful rents only through October
31, 1991, the owner is cautioned to adjust subsequent rents to an amount
no greater than that determined by this order plus any lawful increases,
and to register any adjusted rents with this order and opinion being
given as the explanation for the adjustment.
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 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
ORDERED, that this petition for administrative review be, and the same
hereby is, granted in part, and, that the order of the Rent
Administrator be, and the same hereby is, modified in accordance with
this order and opinion. The amount of the rent overcharge through
October 31, 1991 is $4,645.38.
ISSUED:
JOSEPH A. D'AGOSTA
Acting Deputy Commissioner
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