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

          ------------------------------------X 
          IN THE MATTER OF THE ADMINISTRATIVE :  ADMINISTRATIVE REVIEW
          APPEAL OF                              DOCKET NO. GE210093RO
                                              :  DRO DOCKET NO.ZK004898R
               MICHAEL PALER                     TENANT:ANDREW BARRIENTOS    

                                PETITIONER    : 
          ------------------------------------X                             
             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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