FJ110117RO

                                  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.FJ110117RO
                                              :  DRO DOCKET NO.ZDD110291R
               MARTINIQUE PLAZA APTS. CO.        TENANT: WILMER RODRIGUEZ

                                PETITIONER    : 
          ------------------------------------X                             
           ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW IN 
          PART


               On October 17, 1991, the above-named petitioner-owner filed a 
          Petition for Administrative Review against an order issued on 
          September 13, 1991, by the Rent Administrator, 92-31 Union Hall 
          Street, Jamaica, New York, concerning the housing accommodations 
          known as 56-11 94th Street, Queens, New York, Apartment No. 2A, 
          wherein the Rent Administrator determined that the owner had 
          overcharged the tenant.

               The Administrative Appeal is being determined pursuant to the 
          provisions of Sections 2528.4 and 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 April, 1989, by the 
          tenant's filing of a rent overcharge complaint in which the tenant 
          stated that he first moved to the subject apartment on July 1, 1985 
          at a rental of $436.00 per month.

               In response to the tenant's complaint, the owner submitted a 
          rental history for the subject apartment.  On August 27, 1991, the 
          DHCR sent the owner a Final Notice regarding the imposition of 
          treble damages and gave the owner twenty days to respond.  On 
          September 12, 1991, the owner was sent another notice advising it to 
          disregard the Notice of Imposition of Treble Damages sent to it on 
          August 27, 1991.

               In Order Number ZDD110291R, the Rent Administrator determined 
          that a rent overcharge of $8885.24 had occurred including treble 
          damages.  The sole basis of the overcharge was the owner's failure 
          to register the subject apartment for the year 1988.

               In this petition the owner alleges in substance that it was not 









          FJ110117RO




          afforded due process due to second notice advising it to disregard 
          the first notice so that the owner had no way of knowing the DHCR 
          would in fact impose treble damages; that the owner registered all 
          111 other apartments in the subject premises for 1988 although 
          inadvertently neglecting to register the subject apartment so that 
          a finding of rent overcharge was not warranted; that in any event 
          the imposition of treble damages was not warranted due to this 
          mistake since the owner always charged lawful rents in accordance 
          with guideline increases and other increases to which it was 
          entitled and the failure to register this one apartment for one year 
          cannot be considered willful.  The owner further stated that it was 
          now registering the subject apartment for 1988 and submitted a copy 
          of the 1988 registration for the subject apartment along with its 
          petition.

               In answer to the owner's petition, the tenant stated in 
          substance that the petition should be denied and that the owner 
          submitted a 1988 building registration and  not an apartment 
          registration with its petition.  Subsequently in a January 10, 1994 
          letter to the tenant, the owner indicated that the 1988 registration 
          had been sent to the tenant by certified mail on September 23, 1991.  
          In a response to the owner dated January 14, 1994, the tenant stated 
          inter alia that he cannot find the alleged copy of the 1988 
          registration in his files.

               The Commissioner is of the opinion that this petition should be 
          granted in part.

               Section 2528.4 of the Rent Stabilization Code provides in 
          pertinent part that the failure to properly and timely comply with 
          the initial or annual rent registration shall, until such time as 
          such registration is completed, bar an owner from applying for or 
          collecting any rent in excess of the legal regulated rent in effect 
          on April first of the year for which an annual registration was 
          required to be filed, or such other date of that year as may be 
          determined by the DHCR.  The late filing of a registration shall 
          result in the prospective elimination of such penalty.

               In the instant case the owner has conceded and DHCR records 
          confirm, that the owner did not register the subject apartment for 
          the year 1988.  Accordingly, the Rent Administrator correctly found 
          a rent overcharge due to the failure to register for 1988.  However 
          it is noted that the owner filed the 1988 registration with the DHCR 
          in September 1991 and claims to have served the tenant with same by 
          certified mail in September 1991.  Although the tenant is not sure 
          whether said registration form was sent to him by the owner, it is 
          noted that the tenant was served with the registration form as part 
          of the owner's petition in November 1991.  The tenant is incorrect 
          in his contention that the petition only contained a building wide 
          registration.  Said petition also contained an apartment 
          registration.  The Commissioner is of the opinion that the record 






          FJ110117RO

          contains sufficient evidence to establish that the owner registered 
          the 1988 apartment registration and served the tenant with same in 
          September 1991 so that the rent is restored on a prospective basis 
          effective October 1, 1991 to $518.01 (legal regulated rent on June 
          30, 1991 had the owner registered for 1988) plus any guideline or 
          other increases to which the owner was entitled subsequent to June 
          30, 1991. 

               In addition rent records for the subject apartment and subject 
          building disclose that the owner registered the subject apartment 
          for all years on a timely basis except for the year 1988; and that 
          for the year 1988, the owner registered all other apartments in the 
          subject premises.  Further the record shows that the overcharge 
          found was based solely on the failure to register the subject 
          apartment for 1988 and that the owner had charged rents in 
          accordance with guideline and other increases to which it was 
          entitled.  The Commissioner is of the opinion that based on the 
          foregoing the owner's failure to register the subject apartment for 
          1988 cannot be considered willful and that accordingly the 
          imposition of treble damages was not warranted.  Accordingly, with 
          the elimination of treble damages, the total overcharge through June 
          30, 1991, is reduced to $3529.53 which includes interest and excess 
          security.

               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 $3529.53.  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 







          FJ110117RO

          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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