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
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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 :
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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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