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
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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 :
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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.
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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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