GB110365RO

                                  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. GB110365RO
                                              :  DRO DOCKET NO.ZBH110051R
               BEIGE REALTY CO.                  TENANT: THERESA MURTOGH     

                                PETITIONER    : 
          ------------------------------------X                             
           ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW IN 
          PART


               On February 1, 1991, the above-named petitioner-owner filed a 
          Petition for Administrative Review against an order issued on 
          December 28, 1990, by the Rent Administrator,  92-31 Union Hall 
          Street, Jamaica, New York, concerning the housing accommodations 
          known as 119-06 97th Avenue, Richmond Hills, New York, Apartment No. 
          1C 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 by the filing in 
          August, 1987,  of a rent overcharge complaint by the tenant in which 
          the tenant stated that she first moved to the subject apartment on 
          March 1, 1987 at a rental of $525.00 per month and that a new 
          refrigerator and cabinets had been provided but that she believed 
          that she was being overcharged.

               In response to the tenant's complaint, the owner stated in 
          substance that there was no rent overcharge in that prior to 
          occupancy by the tenant herein it had made improvements in the 
          subject apartment totalling $8873.55 and was entitled to a rent 
          increase of $221.00 for such improvements (1/40th of total cost).

               During the course of the proceeding before the Rent 
          Administrator, the tenant confirmed that the kitchen had been newly 
          panelled before her occupancy.  On July 17, 1990, the owner was 
          asked to submit bills for the new stove, refrigerator, kitchen 
          cabinets, and windows it claimed to have installed.  The owner 
          submitted various bills and cancelled checks in support of its 
          claimed improvements.









          GB110365RO




               In Order Number ZBH110051R, the Rent Administrator determined 
          that the owner had collected a rent overcharge of $14,822.10        
          including treble damages and directed the owner to refund such 
          overcharge to the tenant.  This determination took into account a 
          rent increase of $69.74 due to allowable improvements totalling 
          $2,778.84.

               In this petition, the owner contends in substance that the 
          owner 's allowance for improvements should have been based on a 
          total cost of $8,873.55 which included the installation of new walls 
          and ceilings rather than on $2778.84, and that in any event, the 
          imposition of treble damages was not warranted.

               In answer to the owner's petition, the tenant stated in 
          substance that the owner had not installed a new stove in the 
          subject apartment.  Subsequently, the tenant indicated that she was 
          in the process of vacating the subject apartment.

               The Commissioner is of the opinion that this petition should be 
          granted in part.

               Section 2522.4 of the Rent Stabilization Code provides in 
          pertinent part that an owner is entitled to a rent increase where 
          there has been a substantial increase, other than an increase for 
          which a major capital improvement may be claimed, of dwelling space 
          or an increase in the services, or installation of new equipment or 
          improvements, or new furniture or furnishings, provided in or to the 
          tenant's housing accommodation, on written tenant consent.  In the 
          case of vacant housing accommodations, tenant consent shall not be 
          required.  Such rent increase in the monthly stabilization rent 
          shall be 1/40th of the total cost including installation, but 
          excluding finance charges.

               In the instant case, the owner claimed the following 
          improvements were made during a vacancy period immediately prior to 
          occupancy by the tenant herein:

          new kitchen at total cost of $5400 divided as follows: - $1000 for 
          new kitchen floor;  painting and plastering of all rooms - $1150; 
          removal of debris - $1250; installation of panelling in the kitchen 
          - $2000.
          $354.00 for a new stove; $369.24 for a new refrigerator; $241.00 for 
          kitchen cabinets;  $1009.31 for painting of apartment (some of the 
          painting included hanging of dropped ceilings); and $1500.00 for new 
          windows.
          Total of above claimed items - $8873.55.  In addition the owner 
          submitted a contract claiming $4750 for repair of brickwork in the 
          subject premises but did not include this in its $8873.55 claim and 
          also listed minor additional maintenance items such as a radiator 
          valve and a light switch.







          GB110365RO

               The Rent Administrator's allowance of $2778.84 was based on the
          following: $2000 for the panelling; $441.00 for cabinets and 
          installation of same; and $337.84 for the installation of the new 
          stove.

               The Commissioner is of the opinion that the total allowance 
          should have been listed as $3164.24  with a total rent increase of 
          $79.11 (based on 1/40th of the cost) determined as follows: $2000 
          for the panelling; $354.00 for the new stove rather than $337.84 
          since the Rent Administrator incorrectly failed to allow an 
          additional amount for the removal of the old stove which was 
          itemized on the stove bill; $441.00 for the cabinets and their 
          installation; and $369.24 for the installation of the new 
          refrigerator which the tenant stated had been installed.  The two 
          bills for painting and plastering - $1150 and $1009.31 and the bill 
          for removal of debris - $1250 - were properly disallowed as ordinary 
          repairs and maintenance.  The bill for the windows - $1500 - was 
          properly denied as the owner applied for and was subsequently 
          granted a major capital improvement increase for the windows under 
          docket ZDD130048OM and cannot get an additional increase for same 
          pursuant to Section 2522.4. Similarly any rent increase for brick 
          work which is building wide must be applied for under the major 
          capital improvement provisions of the Code.  The bill for the new 
          floor - $1000 - was properly denied as not being sufficiently 
          documented - no cancelled check for same listed the subject 
          apartment nor the exact nature of the work done.  The Commissioner 
          notes that the same lack of specificity applies to other documentary 
          evidence submitted by the owner for some of the items listed above 
          which were also denied as consisting of maintenance and repair work.  
          In addition the work of installing new walls and ceilings was not 
          documented by the owner.

               With regard to the tenant's contention in answer to the owner's 
          petition that she never received a new stove, this contention cannot 
          properly be considered as an answer to the owner's appeal since the 
          owner did not raise this in its petition and the tenant did not file 
          a petition of her own.

               With regard to the issue of treble damages, 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 established that the 
          overcharge was not willful.  It is noted that the majority of the 
          overcharge was due to the owner's charging a rent increase for items 




          that clearly constituted repairs and maintenance for which no rent 
          increase was warranted and the owner's charging a rent increase for 







          GB110365RO

          new windows for which the owner subsequently obtained a major 
          capital improvement rent increase and thus was clearly not entitled 
          to a rent increase for individual improvements within the apartment 
          as well for the same windows.  Cases cited by the owner in its 
          petition where treble damages were eliminated dealt with situations 
          where the overcharge was attributable to an owner's failure to 
          document the cost of otherwise allowable improvements.  Such cases 
          are not applicable to the situation herein.  Accordingly, the 
          imposition of treble damages was warranted.

               Therefore, the lawful stabilization rents and the amount of the 
          rent overcharges including treble damages are established as 
          follows: total overcharge of $13,434.36 through December 31, 1990 
          with the lawful stabilization rent established at $408.02 effective 
          March 1, 1987 (includes rent increase of $79.11 for improvements); 
          $444.74 effective March 1, 1989 and $466.25 effective November 1, 
          1990 (includes permanent major capital rent increase for the new 
          windows).

               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.  A copy of this order is being sent to the current 
          occupant of the subject apartment.

               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.

               Since the tenant herein received a senior citizen rent increase 
          exemption, a copy of this order is being sent to the New York City 
          Department for the Aging, SCRIE Division, so that an appropriate 
          adjustment can be made in the real estate tax abatement the owner 
          has been granted, if so warranted.  It is noted that the overcharge 
          determination was based on the amount of rent the tenant herein paid 
          as adjusted under the SCRIE program so that the total amount of the 
          overcharge should be returned to the tenant.

               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, 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 total amount of the rent 
          overcharge through December 31, 1990 is $13,434.36 and the lawful 
          stabilization rents are $408.02 effective March 1, 1987; $444.74 
          effective March 1, 1989; and $466.25 effective November 1, 1990 
          including the permanent Major Capital Rent Increase.


          GB110365RO


          ISSUED



                                                                        
                                          JOSEPH A. D'AGOSTA
                                          Deputy Commissioner






                     




































    

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