FI610040RO

                                  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. FI610040RO
                                              :  DRO DOCKET NO.ZDA610279R
               MICHAEL McSHERRY                  TENANT: TOM O'RIORDAN

                                PETITIONER    : 
          ------------------------------------X                             
             ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW


               On September 13, 1991, the above-named petitioner-owner filed 
          a Petition for Administrative Review against an order issued on 
          August 13, 1991, by the Rent Administrator, 92-31 Union Hall Street, 
          Jamaica, New York, concerning the housing accommodations known as 
          367 East 201st Street, Bronx, New York, Apartment No. C3, 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.  

               This proceeding was originally commenced in January, 1989, by 
          the filing of a rent overcharge complaint by the tenant who stated 
          that he first moved to the subject apartment on December 1, 1986 
          pursuant to a two year lease at a rental of $425.00 per month.  The 
          owner was served with a copy of the tenant's complaint and directed 
          to submit a rental history for the subject apartment from April 1, 
          1985.

               In response to the complaint and directive to submit evidence, 
          the owner stated in substance that it charged rent in accordance 
          with a DHCR order issued December 30, 1985 which had allowed a rent 
          increase based on a major capital improvement, hereafter MCI.  The 
          owner submitted a copy of such MCI order, but did not submit the 
          rental history as directed.

               In Order Number ZDA610279R, the Rent Administrator calculated 
          the tenant's vacancy rent on the basis of the rent registered on 
          April 1, 1984, since the owner had not provided a rental history 
          from April 1, 1984 to December 1, 1986, did not allow a vacancy 
          allowance because of the failure to submit the rental history and 
          did not permit the owner to charge arrears for the MCI rent increase 









          FI610040RO



          for any period prior to actual occupancy by the tenant herein.  The 
          Rent Administrator further directed a refund to the tenant of 
          $28,941.10 including treble damages on the overcharges occurring 
          from January 1, 1987 to August 31, 1991.

               In this petition, the owner alleges in substance that the 
          rentals charged were believed to be in accordance with the MCI 
          increase in that the owner did not know he could not charge the MCI 
          total increases to any newly vacant apartment; and in accordance 
          with vacancy and renewal rent increases; and that the 
          misunderstanding of the allowable rent increases should not result 
          in the imposition of treble damages.

               In a response to the owner's petition, the tenant stated in 
          substance that in the interest of resolving his claim more quickly, 
          he is willing to limit his claim to the actual amount of the 
          overcharge without treble damages.

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

               The Rent Administrator correctly determined that the owner was 
          not entitled to a vacancy increase upon occupancy by the tenant 
          herein effective December 1, 1986 because pursuant to Guideline 18 
          then in effect an owner was eligible for a vacancy increase only if 
          no vacancy increase had been taken under Guideline 17.  Since the 
          owner did not supply a rental history from April 1, 1984 although 
          directed to do so, it could not be determined whether or not the 
          owner had taken a vacancy allowance under Guideline 17.  With regard 
          to the MCI increase, it is clear that the tenant herein was not 
          liable for retroactive increases for the period prior to his 
          occupancy of the subject apartment.

               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 establish that any part of the overcharge was not willful.  In 
          addition it is noted that most of the overcharge was not 
          attributable to the failure to provide information for the vacancy 
          allowance and the incorrect charging of MCI arrears to the tenant 
          herein.  Rather there was an overcharge of at least $100.00 per 
          month above the overcharge attributable to the above factors for 
          which the owner offered no excuse at all.  Accordingly, the 






          FI610040RO

          imposition of treble damages was warranted.

               With regard to the tenant's statement that he is willing to 
          forego treble damages, such statement does not change the fact that 
          the overcharge herein was willful and subject to treble damages.  
          However this order is issued without prejudice to any contractual 
          agreement made by the parties as to the amount of money the tenant 
          is willing to accept as settlement of his overcharge complaint.  The 
          rights of any future tenants pursuant to the Rent Administrator's 
          order would remain unaffected by any such settlement.

               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 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 provisions of the Rent 
          Stabilization Law and Code, it is

               ORDERED, that this petition for administrative review be, and 
          the same hereby is, denied, and, that the order of the Rent 
          Administrator be, and the same hereby is, affirmed.

          ISSUED



                                                                        
                                          JOSEPH A. D'AGOSTA
                                          Deputy Commissioner





                     


















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