FF610010RO
           
                             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 
      IN THE MATTER OF THE ADMINISTRATIVE :  ADMINISTRATIVE REVIEW
      APPEAL OF                              DOCKET NO. FF610010RO

                                          :  DISTRICT RENT OFFICE
           Mihill Perlleshi,                 DOCKET NO. CJ610533R
                                            
                                             TENANT: Patricia Zito        

                            PETITIONER    : 
      ------------------------------------X                             

           ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW


      On June 3, 1991, the above-named petitioner-owner filed a Petition for 
      Administrative Review against an order issued on May 15, 1991, by the 
      Rent Administrator, 92-31 Union Hall Street, Jamaica, New York, 
      concerning the housing accommodations known as 2205 Wallace Avenue, 
      Bronx, New York, Apartment No. 2C, wherein the Administrator determined 
      that the owner had overcharged the tenant.

      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.  

      This proceeding was commenced on October 9, 1988 when the tenant filed 
      a complaint of rent overcharge.  The tenant alleged that the owner was 
      collecting additional rent for new windows without authorization and 
      that she believed that based upon the prior tenant's rent, the rent 
      charged was excessive.

      In response, the owner stated that the rent being collected was within 
      rent guidelines and included a charge for a new floor.

      Subsequently, the owner stated that he had installed a new refrigerator 
      and a new stove in the subject apartment, accounting for a subsequent 
      rent increase.

      In reply, the tenant asserted that she believed that a new floor had not 
      been installed and that the bill submitted by the owner was spurious.  
      The tenant admitted that the appliances had been installed but expressed 
      doubt as to whether the price or bill submitted was genuine.



      In the order here under appeal, the Administrator determined that the 
      owner had overcharged the tenant and directed the owner to refund an 
      overcharge of $19,292.53 inclusive of interest, treble damages and 
      excess security.

      In the appeal, the owner contends that considering all allowable 







          FF610010RO

      guideline increases and the charge for improvements there was no 
      overcharge but if any overcharge is found, it would be the result of a 
      miscalculation and not willfulness.

      The tenant contends that the owner's contentions are false and that the 
      overcharge is willful.

      The Commissioner is of the opinion that this petition should be denied.

      Section 2522.4(a) of the Rent Stabilization Code provides that an owner 
      is entitled to a rent increase where there had been a substantial 
      increase of dwelling space or an increase in the services, or 
      installation of new equipment or improvements provided in or to the 
      tenant's housing accommodation, or written tenant consent to the rent 
      increase if the housing accommodation is not vacant at this time of the 
      installation.

      Review of the record confirms that the owner did not submit proof of 
      tenant consent to any of the improvements allegedly made in the subject 
      apartment while the tenant herein was in occupancy.  Further, the tenant 
      denies that a new floor was even installed.  Accordingly, the 
      Administrator correctly omitted the cost of the claimed improvements 
      from the legal rent.

      Section 2526.1 of the Code presumes that all overcharges are willful and 
      treble damages must be imposed unless the owner proves by a 
      preponderance of the evidence that the overcharge was not willful.  The 
      Commissioner finds that the owner has not proved that the overcharge was 
      not willful and accordingly, the imposition of treble damages was 
      warranted.

      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.An examination of the record in this case discloses that

      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 the 
      rent.

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


      ORDERED, that this petition be, and the same hereby is, denied and that 
      the Rent Administrator's order be, and the same hereby is, affirmed.

      ISSUED:
                                                                    
                                      JOSEPH A. D'AGOSTA
                                      Deputy Commissioner
    

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