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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