GE 210093 RO
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. GE210093RO
: DRO DOCKET NO.ZK004898R
MICHAEL PALER TENANT:ANDREW BARRIENTOS
PETITIONER :
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On May 12, 1992 the above-named petitioner-owner timely refiled
a petition for Administrative Review against an order issued on
February 11, 1992, by the Rent Administrator, 92-31 Union Hall
Street, Jamaica, New York, concerning the housing accommodations
known as 189 Norman Avenue, Brooklyn, New York, Apartment No. 14
wherein the Rent Administrator determined that the owner had
overcharged the tenant.
The Administrative Appeal is being determined pursuant to the
provisions of Sections 2526.1 and 2528 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
October, 1985 of a rent overcharge complaint by the tenant in which
the tenant stated in substance that he first moved to the subject
apartment in 1969 and had not been served with a copy of the
apartment registration form (hereafter RR-1 form).
In a response to the tenant's complaint filed in January,
1987, the owner stated in substance that he purchased the subject
premises in 1985 and was not aware that the prior owner had not
registered the subject premises with the DHCR and that he would
complete the registration shortly. In January, 1992, the owner
advised that he had the Rent Stabilization Association process the
registration for the subject building and was assured by them that
"this will be in the computers within days". In July, 1987, the
owner was directed by the DHCR to submit proof that he had served
the tenant herein with the RR-1 Form but the owner never submitted
the required proof of such service.
GE 210093 RO
In Order Number ZK004898R, the Rent Administrator determined
that due to the owner's failure to produce evidence of initial
registration, the owner had collected a rent overcharge of
$11,132.64 including treble damages on that portion of the
overcharge occurring on and after April 1, 1984.
In this petition, the owner contends in substance that the
imposition of treble damages was not warranted in that there would
have been no overcharge found but for the failure to register; that
the building was registered when it was found that it had not been
and that the owner had been totally ignorant of registration
requirements when he purchased the subject premises in 1985.
The Commissioner is of the opinion that this petition should be
denied.
Section 2528 of the Rent Stabilization Code provides in
pertinent part that the penalty for failure to initially register an
apartment will be that the owner will be barred from collecting any
rent in excess of the legal regulated rent in effect on the date the
housing accommodation became subject to the registration
requirements and that the late filing of the registration shall
result in the elimination prospectively of such penalty.
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 record shows that the owner did not
complete the initial registration of the subject apartment.
Evidence has still not been submitted to show that the tenant was
served with the RR-1 Form. The owner's contention that he didn't
know of the registration requirements when he first purchased the
subject premises or thought that the prior owner had already
registered the building does not excuse the failure to file.
Further such contention even if true is not sufficient to establish
that the overcharge was not willful since it is the owner's
responsibility upon purchase of a building to comply with
registration requirements and only charge rent increases if a
building has been properly registered. Accordingly, the Rent
Administrator's order was warranted.
GE 210093 RO
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
GE 210093 RO
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