GF110180RO
                             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. GF110180RO

                                          :  DISTRICT RENT OFFICE
           Anna Villani,                     DOCKET NO. FC110333R
                                            
                                             TENANT: Robert Rivera            
                        
                            PETITIONER    : 
      ------------------------------------X                             


           ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW


      On June 25, 1992, the above-named owner filed a Petition for 
      Administrative Review ("PAR") against the above-referenced order of a 
      Rent Administrator issued on May 29, 1992, concerning the housing 
      accommodations known as 1916 Linden Street, Ridgewood, New York, 
      Apartment No. 3L, wherein the Administrator found that the owner had 
      overcharged the tenant.

      This proceeding had commenced in March, 1991, with the tenant's filing 
      of an overcharge complaint.   In answering that complaint the owner 
      submitted, inter alia, photocopies of: an "owner Copy" of the 1984 
      "initial registration" form for the subject accommodations, in item 9 of 
      which ("Rent April 1, 1984") the figure "$267.70" had been typed; a 
      "DHCR Copy" of the same form, in item 9 of which "$267.47" (and one-half 
      inch above it, "$267.50") had been hand-written; and documents tending  
      to indicate that certain moneys had been expended on improvements to the 
      apartment, those improvements having included: new tub and shower; 
      "under sink"; repairs to the front-room floor, kitchen floor and closet 
      wall; and new "doors" between front room and bedroom.

      On April 9, 1991, the Enforcement Section of the DHCR directed the owner 
      to (inter alia) "investigate why . . . computer printout of [1984] 
      registration does not indicate apartment 3L rental."  The owner 
      submitted no additional evidence on this point.

      The record contains a copy of a report signed by an officer of the 
      Enforcement Section stating that his inspection, conducted on July 15, 
      1991, revealed inter alia: that both the bathtub and the plumbing 
      beneath the sink appeared to be very old; that the new door to the 
      bedroom was about six inches too short (leaving about that much open 
      space at the top of the doorway); and that "[n]o evidence of a closet 
      could be found within the apt."



      In the ensuing order, here appealed, the Administrator determined in 
      pertinent part: (1) that the owner had been advised that her failure to 







          GF110180RO

      provide evidence of initial registration of the subject apartment would 
      cause the proceeding to be handled as a timely tenant challenge to that 
      registration, and that because the owner had failed to provide such 
      evidence, the lawful rent would be frozen at its level on April 1, 1984; 
      (2) that the owner had failed to register the apartment in 1990; (3) 
      that the owner had failed to document the installation or cost of 
      improvements, and that an inspection had shown them not to have been 
      made; and (4) that the owner had failed to prove that her overcharge of 
      the tenant had not been willful, leading to the assessment of treble 
      damages.

      The petition now before the Commissioner attacks each of those 
      determinations as follows. (1) This agency's own computerized records 
      reflect the 1984 registration of the subject apartment, so the 
      Administrator should not have "frozen" the rent at $209.35.  (2) The 
      apartment was registered for 1990, as shown by submitted copies of the 
      building and apartment registrations with proof of mailing thereof.   
      (3) The affidavits of two contractors and a copy of a bill for plumbing 
      supplies, are adequate proof of the questioned improvements.  As to the 
      inspection report, "[a] mistake must have been made," which can be 
      rectified by a reinspection with the owner present to demonstrate each 
      improvement. (4)"[Y]our petitioner (owner) speaks and understands very 
      little of the English language.  Real estate brokers do all her rent 
      work and calculate all increases.  Therefore, even had there been a 
      mistake . . . ., in no way was it willful . . . ."

      The tenant's answer to the petition states in pertinent part: that when 
      he took occupancy of the apartment, "there were no visible signs of a 
      new bathtub or any other improvements, except for . . . linoleum"; that 
      there is no closet in the apartment; and that the owner "speaks english 
      perfectly, and as far as I know . . . has no difficulty in understanding 
      it either."  

      After careful consideration of the record, the Commissioner is of the 
      opinion that this petition should be denied.

      Registration consists, in pertinent part, of filing a designated form 
      with the DHCR.  The form requests several items of information from the 
      owner; among them is the amount of the current rental.

      The owner herein did indeed file such a form for 1984 with this Office.  
      In DHCR records, however, the amount of current rental appears to have 
      been omitted.  And as mentioned on page 1 above, the owner has submitted 
      two completely different versions of that 1984 form, containing three 
      different rental amounts.  In these circumstances the Commissioner will 
      find that the filed form for that year contains no rental amount, and 
      conclude therefrom that -- without that crucial item -- no proper 1984 
      registration was filed for the subject apartment.  The Administrator was 
      thus correct in freezing the rent.

      Turning to the apartment registration for 1990: although DHCR records 
      contain a timely-filed summary building registration for that year, they 
      do not contain a registration receipt from the DHCR Rent Registration 
      Unit or a DHCR date stamped copy of the registration form or an original 
      contemporaneous affidavit of service by the person who do the mailing as 
      required by Policy Statement 92-3 for proof of registration filing with 
      DHCR.  Therefore the owner's contention regarding the 1990 registration 
      is rejected.


          GF110180RO


      As to the questioned improvements to the apartment, the Administrator 
      was correct in refusing to allow a rental increase therefor, because (a) 
      the record contains only affidavits and a bill that does not clearly 
      state "paid"; (b) the bill indicates no apartment and one of the 
      affidavits indicates only the floor that the apartment was on; (c) the 
      bill is largely illegible; (d) one affidavit is dated December 4, 1989, 
      a time when (no complaint having been filed) there was no reason to 
      swear out an affidavit rather than simply write a receipt; and (e) the 
      inspection report summarized supra indicates that most if not all of the 
      stated improvements were not in fact made.

      Petitioner's final argument, that the overcharge could not have been 
      willful because she does not know English and has delegated the 
      management of the building to others, must be rejected.  There is first 
      of all no substantiation, at any point in this proceeding, of the 
      asserted facts re language and delegation.  Furthermore, the 
      Commissioner cannot allow an owner to insulate him/herself from the 
      triple-damage penalty by simply allowing agents to manage his 
      properties.  To the extent that the owner herein must pay this penalty 
      because agents misled her, her remedy will be against them in court; but 
      in a DHCR proceeding she is responsible to the tenant for the 
      consequences of her agents' willfulness.

      In sum the questioned determinations of the Administrator, are correct.

      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.

      THEREFORE, in accordance with the Rent Stabilization Law and Code, it is

      ORDERED, that this petition be, and the same hereby is, denied; and the 
      Administrator's order hereby affirmed.



      ISSUED:



                                                                    
                                      JOSEPH A. D'AGOSTA
                                      Deputy Commissioner





    

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