Adm. Rev. Docket No.: GC910166RO
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
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IN THE MATTER OF THE ADMINISTRATIVE : ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO. GC910166RO
PROPERTY MANAGEMENT ASSOCIATES :
DISTRICT RENT
ADMINISTRATOR'S
PETITIONER : DOCKET NO. EFJ910297R
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TENANT: RALPH G. PERSICO
ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
The above-named petitioner-landlord timely filed a petition for
administrative review against an order issued on January 31, 1992,
by a Rent Administrator, 55 Church Street, White Plains, New York,
concerning housing accommodations known as apartment 2E, located at
485 White Plains Road, Eastchester, New York, wherein the
Administrator determined the proceeding brought on by the tenant's
overcharge complaint, finding that the landlord had not registered
the subject apartment for the period April 1, 1984 through March
31, 1991 and directed the petitioner-landlord to refund $ 5,823.34,
including interest from April 1, 1984.
The Commissioner has reviewed all the evidence in the record and
has carefully considered that portion of the record relevant to the
issues raised by the Petition.
In the Petition the landlord asserts, in substance, that: all
required registration statements were filed, but that even if they
had not been filed (as the Administrator claims) : a) the rent
should not have been rolled back to the April 1, 1984 level as the
the Administrator acknowledged that the apartment had been
registered for 1991; b) the 1984 rent was $480.00 not, as the
Administrator's order indicates, $458.00; and c) it is inequitable
for the Division to impose the penalty imposed by the Administrator
since landlords have not been formally notified by the Division
that they are definitely subject to a penalty for failure to
register and they have not been formally advised by the Division as
to what that penalty is.
The tenant filed an answer opposing the Petition.
Adm. Rev. Docket No.: GC910166RO
The Commissioner is of the opinion that the Petition should be
denied.
The Commissioner finds that the evidence the landlord submitted
below to prove registration prior to 1991 did not satisfy the
burden of proof imposed on the owner by the weight of the
statements of the tenant that he had not been served with any of
those allegedly timely filed registration statements and the
Division's own records: which showed nothing prior to the 1991
registration followed by a mass filing in 1992 for the years 1984
through 1990.
The Commissioner notes that the TPR and the ETPA provide that until
the back registrations are filed, the owner is barred from applying
for or collecting a rent in excess of the legal regulated rent in
effect on the date of the last preceding registration statement,
or, if the apartment was never registered, the legal regulated rent
in effect on the date the housing accommodation became subject to
the registration requirements; in this case, April 1, 1984.
Therefore, the Commissioner finds that the landlord's filing of the
annual registration statement for 1991 prior to the filing of the
initial registration statement for 1984 and the annual registration
statements for the years 1985 through 1990, inclusive, did not lift
the penalty.
The Commissioner finds that the landlord-petitioner's arguments
relating to the equities of imposing the subject penalty for
failure to register are not tenable. The penalty is contained not
only in the TPR (9NYCRR2509.3), but it has been in the ETPA (Sec.
12-a(e); cited as Section 8632-a (e) in McKinney's Unconsolidated
Laws) since the passage of the Omnibus Housing Act of 1983.
That being the case, landlords are on sufficient notice of the
registration requirements and the penalty for failing to comply
with them.
The Commissioner notes that the landlord claims that effective
April 1, 1984, the rent charged and paid was increased to $480.00;
as the tenant's parking fee was increased in connection with the
tenant switching from an outdoor parking space to an indoor space;
and that the tenant had agreed to said rent increase in a letter
which had been submitted below. The Commissioner points out that,
assuming the truth of all of the landlord's allegations on this
point, the landlord still could not properly claim that the legal
regulated rent on April 1, 1984 was $480.00. The agreement to
increase the rent from $458.00 to $480.00 would only be effective
to increase the legal regulated rent if the Division had approved
that increase in an order issued upon the owner's application. The
Commissioner notes that the landlord did not make such an
application; and, therefore, the Division has not issued an order
granting the subject increase. Therefore, the Administrator was
Adm. Rev. Docket No.: GC910166RO
correct in using $458.00 as the legal regulated rent on April 1,
1984.
The Commissioner notes that the tenant's answer opposing the
Petition contains a request that the overcharges found be increased
by applying the treble damages penalty to them. The Commissioner
notes that that application, in effect, seeks to raise an issue not
raised in the PAR. The Commissioner further notes that it is well
settled that new issues may not be raised in an answer. Therefore,
in the absence of the tenant's having filed a PAR against the
Administrator's order, the relief sought by the tenant is beyond
the scope of review on this appeal.
This order may, upon the expiration of the period in which the
owner may institute a proceeding pursuant to Article Seventy-Eight
of the Civil Practice Law and Rules, be filed and enforced
as a judgment.
Moreover, in light of the fact that the record herein indicates
that the tenant no longer occupies the subject accommodation, a
copy of this Order and Opinion is being sent to the present
occupant of the subject accommodation. The Commissioner advises
the owner to update the registration statement for the subject
accommodation (if it has not already done so) to reflect the change
in occupancy and the legal regulated rent as determined in the
Administrator's order.
THEREFORE, in accordance with all of the applicable laws and
regulations, it is
ORDERED, that this Petition be, and the same hereby is, denied, and
that the order of the Administrator be, and the same hereby is,
affirmed.
ISSUED:
JOSEPH A. D'AGOSTA
Acting Deputy Commissioner
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