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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.FE410298RO
: DRO DOCKET NO.ZCF410041R
COLUMBUS STUDIOS, INC. TENANT: RICHARD B. BYRON
PETITIONER :
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ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW IN
PART
On May 28, 1991, the above-named petitioner-owner filed a
Petition for Administrative Review against an order issued on May 3,
1991, by the Rent Administrator, 92-31 Union Hall Street, Jamaica,
New York, concerning the housing accommodations known as 100 West
83rd Street, New York, New York, Apartment No. 1C (rooming house
accommodation), wherein the Rent Administrator determined that the
owner had overcharged the tenant.
The Administrative Appeal is being determined pursuant to the
provisions of Section 2526.1 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 in June, 1988 by the
tenant's filing of a rent overcharge complaint in which the tenant
stated in substance that he first moved to the subject apartment
(room in rooming house accommodations) on December 12, 1986 at a
rental of $325.00 per month without a lease and believed that he was
being overcharged.
The owner was served with a copy of the tenant's complaint and
directed to submit a complete rental history from April 1, 1980
including documentation for any rent adjustments that were entered
for the subject apartment. The owner submitted copies of annual
rent registrations for the subject apartment from 1985 showing the
rent charged to be $325.00. The owner also stated in substance in
an answer dated April 9, 1991, that a prior tenant vacated the
subject apartment in October of 1984 and that the owner then
completed major work in the room as follows: clean room out;
plastering work done; painting of the room; half of the floor was
rebuilt; plumbing; and four pieces of glass were replaced in the
windows. The owner further stated that all of this work was done by
the superintendent. No documentary proof of this work was submitted.
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In Order Number ZCF410041R, the Rent Administrator accepted the
April 1, 1984 registered rent of $164.40 as the initial legal
registered rent, did not allow any rent increases for the alleged
improvements, and did not allow any guideline increases for the
period of occupancy for the tenant herein from December 12, 1986
through January 26, 1991 and determined that the tenant had been
overcharged during the aforementioned period in the amount of
$23,608.20 including treble damages.
In this petition, the owner alleges in substance that it should
have been allowed a rent increase for the improvements made prior to
occupancy by the tenant herein; that such improvements included but
are not limited to, replacing the old floor with a new one;
replacing walls and ceilings with new ones; and replacing old pipes
with new ones throughout the room. The owner further alleges that
the above work was done by employees of the owner and therefore the
owner has no paid bills or cancelled checks as proof of the work
done; that the owner is entitled to guideline increases for the
period of five years listed in the Rent Administrator's order; that
the rent charged of $325.00 was fair and equitable and that in any
event any overcharges were not willful and therefore the imposition
of treble damages was not warranted.
In answer to the owner's petition, the tenant stated inter alia
that no improvements were in fact made prior to his occupancy except
for a linoleum carpet on the floor; that the old wood floor was
never replaced; and that the ceiling is falling down.
The Commissioner is of the opinion that this petition should be
granted in part.
An examination of the record in this case discloses that the
owner has made inconsistent statements in the proceeding before the
Rent Administrator and on appeal as to what work was allegedly done
in the subject apartment prior to occupancy by the tenant herein.
Moreover, the owner has never submitted documentary proof of what
work was done (even if labor was supplied by the superintendent, the
cost of the alleged new wood floor, ceiling, etc. should have been
documented) nor even stated what the work cost. In addition, the
tenant denies that most of the so called improvements were in fact
made. Further, the Commissioner characterizes the work claimed in
the proceeding before the Rent Administrator as clearly maintenance
and repair work for which no rent increase is warranted.
Accordingly, the Rent Administrator correctly did not allow a rent
increase for any of the alleged improvements.
An examination of the record discloses that the Rent
Administrator did not grant the owner the appropriate yearly hotel
guideline rent increases to which it was entitled. Taking this
factor into account, the Commissioner has recalculated the lawful
stabilization rents and the amount of the rent overcharge allowing
such guideline increases. The lawful stabilization rents and amount
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of rent overcharge are set forth on the amended rent calculation
chart attached hereto and made a part hereof. DHCR rent records
indicate that the owner registered the April 1, 1984 rent for the
subject apartment at $164.40 and thus that amount has been used as
the initial legal regulated rent.
With regard to the imposition of treble damages, the owner has
not established that the overcharge was not willful. Rather the
owner has submitted inconsistent statements regarding alleged
improvements made in the subject apartment and has not substantiated
that any qualifying improvements were in fact made. Therefore the
imposition of treble damages was warranted.
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.
The Commissioner has determined in this Order and Opinion that
the owner collected overcharges of $22,490.22. This Order may, upon
expiration of the period for seeking review of this Order and
Opinion pursuant to Article Seventy-eight of the Civil Practice Law
and Rules, be filed and enforced as a judgment or not in excess of
twenty percent per month of the overcharge may be offset against any
rent thereafter due the owner. Where the tenant credits the
overcharge, the tenant may add to the overcharge, or where the
tenant files this Order as a judgment, the County Clerk may add to
the overcharge, interest at the rate payable on a judgment pursuant
to section 5004 of the Civil Practice Law and Rules from the
issuance date of the Rent Administrator's Order to the issuance date
of the Commissioner's Order.
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, granted in part, and, that the order of the Rent
Administrator be, and the same hereby is, modified in accordance
with this order and opinion.
ISSUED
JOSEPH A. D'AGOSTA
Deputy Commissioner
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