FD 410064 RT, FD 410072 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



          ------------------------------------X  S.J.R. NO.: 6598,6607
          IN THE MATTER OF THE ADMINISTRATIVE    ADMINISTRATIVE REVIEW
          APPEALS OF                             DOCKET NOS.: FD 410064 RT,
                                                              FD 410072 RO

                       FRED WASSERMAN
                            AND
                  182 AVENUE A ASSOCIATES,
                                                 DRO DOCKET NO.: ZAH 410262 R
                                                                              
                                  PETITIONERS    
          ------------------------------------X                             


                    ORDER AND OPINION GRANTING TENANT'S PETITION
                              FOR ADMINISTRATIVE REVIEW
                                        IN PART
                                         AND
             GRANTING OWNER'S PETITION FOR ADMINISTRATIVE REVIEW IN PART


          On April 1, 1991, the above-named petitioner-owner and tenant filed 
          Petitions for Administrative Review against an order issued on 
          February 25, 1991, by the Rent Administrator, 92-31 Union Hall 
          Street, Jamaica New York, concerning the housing accommodations 
          known as 182 Avenue A, New York, New York, Apartment No. 4, wherein 
          the Rent Administrator determined that the owner had overcharged 
          the tenant.

          On August 10, 1992 the Commissioner issued an Order and opinion 
          denying the owner's petition and granting the tenant's petition in 
          part.

          Subsequent thereto, the petitioner-owner and tenant filed petitions 
          in the Supreme Court pursuant to Article 78 of the Civil Practice 
          Law and Rules requesting that the order of the Commissioner be 
          annulled (owner) and modified (tenant).

          The proceeding was then remitted to the Division of Housing and 
          Community Renewal (DHCR) for reconsideration.

          The Administrative Appeals are 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 appeals.  








          FD 410064 RT, FD 410072 RO

          This proceeding was originally commenced by the filing in August 
          1986 of a rent overcharge complaint by the tenant who stated in 
          substance that he was being overcharged and that he had moved to 
          the subject apartment on June 1, 1986 at a rental of $823.00 per 
          month whereas the prior tenant had paid $653.82 per month.  As 
          proof that the prior tenant had paid $653.82 per month, the tenant 
          submitted a copy of a post due rent notice sent to the prior tenant 
          dated May 13, 1986 to the effect that a rent of $653.82 was due.

          On January 24, 1991 a copy of the tenant's complaint was sent to 
          the owner and the owner was afforded an opportunity to submit a 
          rental history from April 1, 1980, and proof that the subject 
          apartment was registered, and a registration notice served on the 
          tenant.  The owner was also advised that, if an overcharge was 
          found and determined to be willful, treble damages would be 
          imposed.  The record before the Rent Administrator revealed no 
          response from the owner.

          On January 24, 1991 a request was sent to the tenant to update the 
          rental history for the subject apartment from June 1, 1986 to the 
          present.  The record before the Rent Administrator revealed no 
          response from the tenant.

          In Order Number ZAH 410262 R, based on the owner's failure to 
          submit a rental history, the Rent Administrator established the 
          lawful stabilization rent as $721.93 effective June 1, 1986, 
          determined that the tenant had been overcharged and directed a 
          refund to the tenant of $11,930.16 including treble damages on that 
          portion of the overcharge collected on and after April 1, 1984.

          In the owner's petition, the owner alleges in substance that it 
          never received notice of the proceeding until receiving a copy of 
          the Rent Administrator's order, that it was not given notice of the 
          imposition of treble damages and that the subject premises was 
          properly registered with the Division of Housing and Community 
          Renewal (DHCR).

          In the tenant's petition, the tenant alleges in substance that the 
          June 1, 1986 rent should have been set at $653.82, the last rent 
          paid by the prior tenant and that the rent overcharge should have 
          been updated to calculate overcharges through February 1991 rather 
          than through May 31, 1989 as done in the Rent Administrator's 
          order.  Subsequently the tenant advised that he has now moved from 
          the subject apartment.

          The Commissioner is of the opinion that the tenant's petition 
          should be granted in part and that the owner's petition should be 
          granted in part.

          An examination of the records in this case discloses that contrary 
          to the owner's contention on appeal, it was duly served with a copy 
          of the tenant's rent overcharge complaint on January 24, 1991 at 
          its last registered address which was the same address that the 
          final order was sent to, and afforded an opportunity to respond.  
          Further in a February 1, 1993 submission, the owner through its 
          attorney concedes that the owner was served with the January 24, 
          1991 notice and that the owner had responded on February 19, 1991.  
          A copy of the respond was submitted in which the owner advised that 


          FD 410064 RT, FD 410072 RO

          it had records documenting the legality of the rent and was 
          requesting additional information and an extension.  In its 
          February 1, 1993 submission, the owner for the first time enclosed 
          copies of bills and cancelled checks purportedly for work done in 
          the subject apartment in 1986 totalling $3,204.83.  It is noted 
          that this documentary evidence was not submitted either during the 
          proceeding before the Rent Administrator nor during the original 
          PAR proceeding and cannot properly be considered for the first time 
          herein since this is not a de novo proceeding.  Moreover an 
          examination of these bills and cancelled checks discloses that much 
          of the work listed consisted of ordinary repairs and maintenance, 
          that many of the bills and cancelled checks did not list the 
          subject apartment and that some cancelled checks were submitted 
          without invoices or other data showing what the checks were for.

          With regard to the owner contention that it properly registered the 
          subject apartment with the DHCR, a recheck of DHCR computer records 
          at Albany, New York, discloses that the owner did properly and 
          timely initially register the subject apartment in 1984.  The 
          earlier finding that the owner had not registered was perhaps due 
          to the confusion resulting from the use of two different building 
          registration identification numbers for the subject premises -  
          132782 and 132783 - the latter number referring to the rear portion 
          of the subject premises.  Therefore the finding of a rent 
          overcharge based on the owner's failure to submit a rental history 
          from April 1, 1980 was incorrect.  Since this owner properly filed 
          the initial registration, it was required to submit a rental 
          history only from April 1, 1984 which had been done based on 
          registration information available at the time of the Rent 
          Administrator's processing.  However, there is still a rent 
          overcharge based on the rental history.

          With regard to the owner's contention that the imposition of treble 
          damages was not warranted, Section 2526.1 of the Rent Stabilization 
          Code provides in pertinent part that any owner who is found by the 
          DHCR to have collected a rent or other consideration in excess of 
          the legal regulated rent on and after April 1, 1984 shall be 
          ordered to pay to the tenant a penalty equal to three times the 
          amount of such excess.  If the owner establishes by a preponderance 
          of the evidence that the overcharge was not willful, the DHCR shall 
          establish the penalty as the amount of the overcharge plus interest 
          from the date of the first overcharge on or after April 1, 1984.

          In the instant case, the owner has not submitted any evidence to 
          substantiate its claim that the overcharge was not willful although 
          advised in the January 24, 1991 notice about the fact that treble 
          damages would be imposed on any willful overcharges found.  
          Accordingly, the imposition of treble damages was warranted.

          With regard to the tenant's contention that the rent overcharge 
          should have been updated to calculate overcharges through February, 
          1991, the Commissioner notes that the tenant did in fact respond to 
          the January 24, 1991 notice requesting an update at the time of 
          issuance of the Rent Administrator's order.  During the course of 
          the Article 78 proceeding, the tenant submitted a DHCR February 25, 
          1991 date stamped copy of his submission.  Accordingly, the 
          overcharge will be updated through the last day of the month in 
          which the Rent Administrator's order was issued.







          FD 410064 RT, FD 410072 RO


          Taking the above factors into account, the Commissioner has 
          recalculated the lawful stabilization rents and amount of rent 
          overcharge for the subject apartment, including treble damages, on 
          the overcharge occurring on and after April 1, 1984.  The lawful 
          stabilization rents and amount of rent overcharge are set forth on 
          the amended rent calculation chart attached hereto and made a part 
          hereof.

          The owner is directed to reflect the findings and determinations 
          made in this order on all future registration statements, including 
          those for the current year if not already filed, citing this Order 
          as the basis for the change.  Registration statements already on 
          file, however, should not be amended to reflect the findings and 
          determinations made in this order.  The owner is further directed 
          to adjust subsequent rents to an amount no greater than that 
          determined by this order plus any lawful increases.

          This order may, upon the expiration of the period in which the 
          owner may institute a proceeding 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.  A copy of this order is 
          being sent to the tenant currently in occupancy at the subject 
          apartment.

          THEREFORE, in accordance with the provisions of the Rent 
          Stabilization Law and Code, it is

          ORDERED, that the tenant's petition for administrative review be, 
          and the same hereby is, granted in part, that the owner's 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 lawful stabilization rents and the amount of the rent 
          overcharge are established on the attached chart which is fully 
          made a part of this order.  The amount of the rent overcharge 
          through February 28, 1991 is $14,109.64.





          ISSUED

                                                                      
                                          JOSEPH A. D'AGOSTA
                                          Deputy Commissioner

    

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