GB 110145-RO
                                  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.: GB 110145-RO

                                                 DISTRICT RENT OFFICE
               Skillman Associates,              DOCKET NO.: EH 110201-R

                                                 TENANT: Anthony Sarrica     
                                    PETITIONER    
          ------------------------------------X                             


           ORDER AND OPINION REMANDING THE PROCEEDING TO THE ADMINISTRATOR
                                          

          On February 13, 1992, the above-named petitioner-owner filed a 
          Petition for Administrative Review against an order issued on     
          January 9, 1992, by the Rent Administrator, concerning the housing 
          accommodations known as 39-77 46th Street, Sunnyside,
          New York, Apartment No. H2, 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 on August 14, 1990 by the 
          filing of a rent overcharge complaint by the tenant.  The 
          complaining tenant had executed a two year lease commencing on 
          December 1, 1989 at a rent of $530.21.  The prior tenant, who was 
          the son of the complainant, paid a rent of $346.13.


          In an answer to the complaint dated January 30, 1991, the owner 
          disputed the tenant's claim that he had lived in the apartment with 












          GB 110145-RO

          his son, the prior tenant, since 1987.  The owner referred to the 
          complainant's application for the apartment which stated that he 
          was residing at 46-01 39th Avenue and that his "present landlord" 
          was Trump Management.  Additionally, the owner contended that the 
          complainant was aware of the cost of all the new equipment and that 
          the owner was thus entitled to 1/40th of the cost per month as a 
          rent increase.  Finally, the owner stated that, even if an 
          overcharge is found, there can be no basis for finding that it was 
          willful, and no treble damages should be imposed.

          In response to further inquiry from the Administrator, the tenant 
          submitted an affidavit, signed on December 4, 1991, wherein he 
          affirmed that the "rent arrears" he was required to pay before 
          signing the lease were for his own residence in the subject 
          premises during his son's tenancy.  Totalling $1,288.56, the amount 
          was calculated by subtracting his son's rent ($346.13) from the 
          rent being charged the complainant ($530.21) and charging him the 
          difference for the seven month period from May through November, 
          1989 ($184.08 x 7 = $1,288.56).  The affidavit also stated that the 
          Managing Agent Marge Cox told him the "rules" required him to pay 
          this amount as "back rent" because he was not supposed to be living 
          there.  The affidavit further stated that the tenant had resided in 
          the apartment with his son for approximately three years, as was 
          also attested to in his son's letter to the owner, as verified and 
          dated on November 22, 1989.  Finally, the tenant states that he 
          told the Managing Agent that he did not want window guards because 
          he lived on the first floor and did not have any small children, 
          but that he was told the law required it and he would have to pay 
          for it.  He acknowledged that the window guards were installed.

          In the order, the Administrator found that the legal registered 
          rent on April 1, 1986 was $316.17, when the complainant's son, 
          Charles Sarrica, was the primary tenant; that the complainant, 
          Anthony Sarrica, had moved into the subject-premises at least two 
          years before his son's departure and that, pursuant to his 
          succession rights as a family member residing with the stabilized 
          tenant, the complainant was entitled to a renewal lease on December 
          1, 1989; that the complainant was then illegally forced to pay his 
          son's unpaid rent of $1,288.56, to accept apartment improvements 
          without his consent and to accept window guards in order to 
          continue to occupy the apartment; that the entire cost of the 
          improvements, the window guards and the amount of the unpaid rent 
          constituted overcharges in the amount of $5,314.74 for which 
          because evidence indicated that such overcharge was willful, treble 
          damages were assessed, resulting in total overcharges of 
          $16,097.15.  It was further determined that the lawful registered 
          rent remained at $372.28, which was the last rent paid by the 
          complainant's son.

          The owner's petition maintains that the order is without a rational 
          basis for several reasons: firstly, the owner claims that the 
          complainant did not reside in his son's apartment prior to signing 






          GB 110145-RO

          the new lease, and that, therefore, it must be considered a vacancy 
          lease entitling the owner to a vacancy allowance; secondly, the 
          disallowance of the entire claim for new equipment is irrational 
          because it goes against the complainant's actual consent to the 
          increase, as fully explained in a rider to the lease setting forth 
          the amount the tenant would pay for the improvements, as well as in 
          the written statement from the prior tenant, the complainant's son, 
          agreeing to the increase for new windows; and, thirdly, because, 
          under the facts of the case, it was error to find a willful 
          overcharge and to impose treble damages.  The owner concedes that 
          the duplication or "piggybacking" of the guidelines increase was an 
          overcharge but asserts that the imposition of treble damages was 
          improper and contradicts the Commissioner's prior rulings on this 
          issue.

          In a submission dated September 17, 1992, Charles Sarrica, the son 
          of the complainant, notified the DHCR that the complainant Anthony 
          Sarrica, had died on March 20, 1992, and that he was participating 
          in the proceeding on behalf of his father's estate.  Various 
          documents were also submitted, including a copy of the death 
          certificate and the letters of Administration from the Surrogate of 
          Queens County, dated May 26, 1992, wherein Charles Sarrica was 
          authorized to Administer the decedents estate.  The complainant's 
          son states that his father had resided in the apartment with him 
          during his lease tenancy, and remained after his departure in 
          November, 1987, which fact is misstated as "November, 1989" in the 
          owner's petition.  Complainants' son further contends that all 
          appliances installed by the owner prior to his father's tenancy 
          were "unnecessary and excessive," had not been requested by the 
          complainant but "were literally forced upon him."

          The Commissioner is of the opinion that the proceeding should be 
          remanded to the Rent Administrator for a new determination.

          Section 2520.6 of the Rent Stabilization Code, as amended, defines 
          "immediate family" and "family member" as follows:

               (n) Immediate Family.    A husband, wife, son, daughter, 
          stepson, stepdaughter, father, mother, stepfather, stepmother, 
          brother, grandfather, grandmother, grandson or granddaughter.

               (o) Family Member.




               (1) A husband, wife, son, daughter, stepson, stepdaughter, 
          father, mother, stepfather, stepmother, brother, sister, nephew, 
          niece, uncle, aunt, grandfather, grandmother, grandson, 
          granddaughter, father-in-law, mother-in-law, son-in-law, or 
          daughter-in-law of the tenant or permanent tenant; or













          GB 110145-RO

               (2) Any other person residing with the tenant or permanent 
          tenant in the housing accommodation as a primary or principal 
          residence, respectively, who can prove emotional and financial 
          commitment, and interdependence between such person and the tenant 
          or permanent tenant.

          Section 2523.b(1) of the current Rent Stabilization Law, as amended 
          provides:

               (b) (1) Unless otherwise prohibited by occupancy restrictions 
          based upon income limitations pursuant to federal, state or local 
          law, regulations or other requirements of governmental agencies, if 
          an offer is made to the tenant pursuant to the provisions of 
          subdivision (a) of this section and such tenant has permanently 
          vacated the housing accommodation, any member of such tenant's 
          family, as defined in section 2520.6(o) of this Title, who has 
          resided with the tenant in the housing accommodation as a primary 
          residence for a period of no less than two years, or where such 
          person is a "senior citizen," or a "disabled person" as defined in 
          paragraph (4) of this subdivision, for a period of no less than one 
          year, immediately prior to the permanent vacating of the housing 
          accommodation by the tenant, or from the inception of the tenancy 
          or commencement of the relationship, if for less than such periods, 
          shall be entitled to be named as a tenant on the renewal lease.

          In the instant case, the Administrator determined overcharges in 
          the amount of $5,314.74, and, as based upon the finding that these 
          charges were willful, the treble damages penalty increased that 
          amount to $16,097.15.  The finding of willful overcharges was based 
          upon several conclusions: that the tenant's payment of 
          "retroactive" rent for the period he resided in the apartment 
          during his son's tenancy was an improper and willful overcharge; 
          that the tenant, as father of the lease tenant, was in permanent 
          residence in the household for the minimum period required to 
          establish his rights in succession; that, as a result, the lease 
          offered to him in his own name after his son's departure was a 
          renewal lease and not a vacancy lease, thus invalidating the 
          vacancy allowance; that, because it was not a vacancy lease, the 
          rent increase for new equipment was invalid because the tenant had 
          not willingly consented to it; and, finally, that the overcharges 
          for both the vacancy allowance and the new equipment were willful, 
          thereby actuating the treble damages penalty.


          Upon examination of the record, however, it is apparent that only 
          the first of these conclusions - that the payment of the 
          "retroactive" rent was a willful overcharge - is supported by 
          substantial and uncontested evidence and that, as a result, the 
          proceeding must be remanded for a thorough investigation on the 
          remaining issues.

          With respect to the tenant's actual residency in the apartment 






          GB 110145-RO

          prior to his son's departure, the owner correctly points to the 
          listing of a different address on the tenant's application as 
          evidence that he had never been in permanent residence there prior 
          to signing the lease.  Nevertheless, the tenant maintains that it 
          was his primary residence and since the evidence is inconclusive, 
          the tenant's son should be given the opportunity to explain the 
          contradictory statement on the application.  A hearing should be 
          held if warranted.  Most importantly, the owner's demand for the 
          "retroactive" rent, besides being illegal, is also an apparent 
          admission by the owner that the tenant had been a resident of the 
          household for at least seven months.  The tenant, on the other 
          hand, states that he lived there for over two years.  Since that 
          period is sufficient for succession rights to accrue,  and, if the 
          person is a senior citizen, only one year would be sufficient, the 
          matter requires conclusive findings to resolve these contradictory 
          claims.

          The determined overcharges for the new equipment presents even 
          thornier questions.  If, as the owner maintains, the tenant had no 
          rights in succession, then, under Section 2522.4(a) (1) of the Rent 
          Stabilization Code, the owner correctly relied on its right to add 
          a rent increase for the cost of new equipment, even without the 
          consent of the vacancy tenant.  In such a case, the rejection of 
          the claim was improper, and it would need to be evaluated on its 
          merits.  If, on the other hand, the record supports the tenant's 
          rights in succession, any one of three outcomes is possible: the  
          tenant, under no duress, consented to the rent increase at the 
          lease signing, requiring an evaluation of the claim on the merits; 
          the increase is not valid for reasons other than pressure applied 
          by the owner and, under previous case rulings and Policy Statement 
          89-2, treble damages are not applied; and, lastly, the increase was 
          a willful overcharge by the owner due to its pressuring the tenant 
          to consent, and treble damages are assessed.

          No such investigation is required to affirm the finding of an 
          overcharge in the amount of $1,288.56 due to the unlawful demand 
          for the "retroactive" rent from the decedent-tenant.  Furthermore, 
          the very nature of this demand bespeaks of willfulness on the 
          owner's part, resulting in overcharges of $3,865.68, including 
          treble damages.


          The New York City Health Code mandates window guards only when a 
          child ten years of age or younger resides in the apartment. Since 
          that is not the case in this proceeding, it was improper for the 
          owner to require the decedent-tenant to accept and pay for window 
          guards.

          A proper review of all other overcharges determined in the order 
          depends upon the resolution of the issues of the decedent-tenants' 
          status in the household, and, concomitantly, upon whether the 
          decedent freely consented to the new equipment.












          GB 110145-RO


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

          ORDERED, that this petition be, and the same hereby is, granted to 
          the extent of remanding this proceeding to the District Rent 
          Administrator for further processing in accordance with this order 
          and opinion. 


          ISSUED:

                                                                      
                                          JOSEPH A. D'AGOSTA
                                          Acting Deputy Commissioner




                     































    

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