STATE OF NEW YORK
DIVISION OF HOUSING AND COMMUNITY RENEWAL
OFFICE OF RENT ADMINISTRATION
92-31 UNION HALL STREET
JAMAICA, NEW YORK 11433
------------------------------------X S.J.R. NO.: 6452
IN THE MATTER OF THE ADMINISTRATIVE : ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.:GB 410302-RT
PAN AM EQUITIES, INC., RENT ADMINISTRATOR'S
DOCKET NO.: EC 410046-R
------------------------------------X Tenant: Marisa Fleming
ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
On February 28, 1992, the above-named owner filed a petition for
administrative review of an order issued on January 30, 1992 by a District
Rent Administrator concerning the housing accommodations known as 306 Est
89th Street, Apartment 1D, New York, New York wherein the Administrator
determined that an overcharge had occurred.
Subsequently, and after more than ninety days had elapsed from the time it
filed its petition for administrative review, the owner deemed its petition
as having been denied, and sought judicial review in the supreme Court of
the State of New York pursuant to Article 78 of the Civil Practice Law and
By stipulation dated August 7, 1992, the court proceeding was withdrawn on
condition that the Division of Housing and Community Renewal (DHCR) render
a determination within 90 days of August 7, 1992.
The Commissioner has reviewed all of the evidence in the record and has
carefully considered that portion of the record relevant to the issues
raised by the administrative appeal.
This proceeding was commenced by the filing of a rent overcharge complaint
on March 1, 1990.
The owner in its answer states that it had registered the subject apartment
and had taken only appropriate guideline increases plus an appropriate
vacancy improvement allowance. The owner acknowledged an overcharge had
occurred by virtue of an allegedly inadvertent error in which the owner took
two guideline increases in the same guideline period. Further the owner
alleged that it had prepared a refund check for the amount of the overcharge
but could not locate the tenant who had vacated the subject apartment.
Finally, the owner alleged that it would adjust all future rents to reflect
this acknowledge error. Accordingly, the owner alleged no treble damages
should be assessed.
Submitted with the answer the owner included copies of the prepared refund
checks and documentation of the vacancy improvements.
DOCKET NUMBER: GB 410302-RO
The tenant subsequently advised DHCR of her new address and acknowledged the
existence of the vacancy improvements. In her letter, she stated that she
did not know whether the initial registration for the subject apartment was
challenged or the age of the vacancy improvements.
In the order here under review, the Administrator found that the owner had
sufficiently documented its claim for vacancy improvements. However, by
virtue of the owner's failure to register the subject apartment in 1987, the
Administrator froze the rent from 1987 through the date of issuance. In
addition, the Administrator assessed treble damages. Accordingly, the
Administrator determined that the lawful stabilization rent was $449.81 and
total overcharges were $14,422.68 including treble damages.
In its petition for administrative review the owner reasserts that no
overcharges occurred, and alleges that it had registered the subject
apartment in 1987. It submits a certification from the Rent Stabilization
Association to document its claim.
The tenant submitted no answer to the petition for administrative review.
After careful consideration, the Commissioner is of the opinion that this
petition should be granted.
A reexamination of DHCR records discloses that the Subject was, in fact,
registered in 1987. The Administrator order was based solely on an
inadvertent clerical error and must be revoked.
Finally, the owner has clearly shown a lack of willfulness in this
proceeding. The owner refunded or attempted to refund the full overcharge
including interest within the time period allotted to the owner to answer.
Further, DHCR records indicate that the owner had, in fact, adjusted
subsequent rents in accordance with its acknowledged overcharge.
Accordingly, if the tenant has rejected the owner's tender of the
overcharge, the owner is directed to refund such amounts plus 9% interest
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, and that the order of the Rent Administrator be, and the
same hereby is, revoked.
JOSEPH A. D'AGOSTA
Acting Deputy Commissioner