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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. 7275
IN THE MATTER OF THE ADMINISTRATIVE : ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.FI610044RO
: DRO DOCKET NO.ZBJ610360R
H.B. ASSOCIATES TENANT: NAN CHENG
PETITIONER :
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On September 6, 1991, the above-named petitioner-owner filed a
Petition for Administrative Review against an order issued on August
22, 1991 and amended on November 29, 1991, by the Rent
Administrator, 92-31 Union Hall Street, Jamaica, New York,
concerning the housing accommodations known as 1134 Stratford
Avenue, Bronx, New York, Apartment No. 4G. In the original order a
rent overcharge of $4,546.20 was found. In the amended order which
stated that the earlier issue date of August 22, 1991 was in full
force and effect, the same amount of rent overcharge was found but
the order included an explanation of why treble damages were not
assessed and corrected the dates of overcharge from August 1, 1989
through July 31, 1991 to August 1, 1986 through July 31, 1991.
Subsequently the tenant filed an Article 78 Petition in the
nature of mandamus requesting that the owner's petition be
expeditiously determined.
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 by the tenant's filing
of a rent overcharge complaint in October, 1987 in which the tenant
stated that he first moved to the subject apartment in August 1986
at a rental of $325.00 per month.
In answer to the application, the owner submitted a rental
history and stated that it had renovated the bathroom when a prior
tenant moved out and charged a $32.48 rent increase for such
renovation. No proof of the renovation costs were submitted.
In Order Number ZBJ610360R issued on August 22, 1991 and
amended on November 29, 1991, the Rent Administrator determined that
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a rent overcharge of $4,546.20 had occurred including interest and
excess security during the period from August 1, 1986 through July
31, 1991.
In this petition, the owner alleges in substance that it did
not charge prior tenant Bun Touch (incorrectly designated as T. Bun
in the Rent Administrator's order) a vacancy allowance and the Rent
Administrator's order incorrectly reflects such allowance. In
support of such contention, the owner submits a copy of its October
2, 1990 answer in which it is stated that the rent prior to
occupancy by tenant Touch was $240.75 and to this was added $32.48
for the bathroom renovation and 4% for a one year lease making
Touch's rent $284.16 as of December 1, 1985. The owner then states
that when the tenant herein moved in, he was charged the 7 1/2%
vacancy allowance and 4% guideline allowance plus $15.00 low rent
allowance pursuant to Guideline 17 so that there was no rent
overcharge.
In answer to the petition, the tenant stated in substance that
prior tenant Padilla allegedly singed a lease renewal on or about
November 30, 1985 and that tenant Touch allegedly signed a lease for
the same apartment on December 2, 1985 and that the resulting
overcharge is willful so that treble damages should have been
imposed.
The Commissioner is of the opinion that this petition should be
denied.
It is noted that the Touch lease and the vacancy lease for the
tenant herein occurred within the same guidelines period -
Guidelines 17. The compounding of guidelines increases during the
same guidelines period is prohibited. In addition only one vacancy
allowance may be applied during the Guidelines 17 period (October 1,
1985 through September 30, 1986). Further the owner did not submit
documentary evidence to sustain its position that a bathroom
renovation occurred immediately prior to the Touch tenancy.
Accordingly, the Rent Administrator correctly determined the initial
lawful stabilization rent for the tenant herein to be $283.44 -
11.5% (4% plus 7.5% vacancy allowance) above the $240.75 rent in
effect on September 30, 1985 when prior tenant Padilla was in
occupancy. The owner does not receive credit for the Touch lease
since that would result in the compounding of guideline increases
during the same guidelines period.
With regard to the tenant's contention that the imposition of
treble damages is warranted, such issue cannot be properly
considered herein since the tenant did not file his own petition for
review. However, the Commissioner notes, contrary to the tenant's
allegation, no rent increase was based on the alleged Padilla
renewal lease said by the tenant to be signed about November 30,
1985. Rather the rent increase for the complaining tenant's initial
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lease was based on the Padilla lease in effect from December 1, 1983
to November 30, 1985 at a rental of $240.75 per month. Further
pursuant to Policy Statement 89-2 treble damages are generally not
imposed if hypertechnical errors such as compounding guidelines
increases during the same guidelines period have occurred.
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.
The Commissioner has determined in this Order and Opinion that
the owner collected overcharges of $4,546.20. This Order may, upon
expiration of the period for seeking review of this Order and
Opinion pursuant to Article Seventy-eight of the Civil Practice Law
and Rules, be filed and enforced as a judgment or not in excess of
twenty percent per month of the overcharge may be offset against any
rent thereafter due the owner. Where the tenant credits the
overcharge, the tenant may add to the overcharge, or where the
tenant files this Order as a judgment, the County Clerk may add to
the overcharge, interest at the rate payable on a judgment pursuant
to Section 5004 of the Civil Practice Law and Rules from the
issuance date of the Rent Administrator's Order to the issuance date
of the Commissioner's Order.
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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