GB210189RO
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. GB210189RO
: DISTRICT RENT OFFICE
Basil Leslie, DOCKET NO. ZCB210208R
OWNER: Elma Baptiste
PETITIONER :
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On February 26, 1992, the above-named petitioner-owner timely refiled a
Petition for Administrative Review against an order issued on May 28,
1991, by the Rent Administrator, 92-31 Union Hall Street, Jamaica,
New York, concerning the housing accommodations known as 477 Park Place,
Apartment No. 4R, Brooklyn, New York wherein the Administrator
determined that an overcharge had occurred and directed the owner to
refund overcharges of $29,248.31 inclusive of excess security and treble
damages.
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 commenced on January 3, 1988 when the tenant filed
a complaint of rent overcharge.
In response to the complaint, the owner stated that it had only recently
purchased the property and that there was no overcharge as the prior
owner had expended a great deal of money to rehabilitate the subject
apartment. With its answer, the owner submitted an affidavit from the
former owner, various invoices, copies of leases from December 1986
through March 1992 and copies of the annual registrations for 1986-87,
1989-90.
In the order here under review, the Administrator established the base
rent at $185.00 and allowing the owner a rent increase of $158.06
(1/40th of $6,322.73) for individual apartment improvements, determined
that the tenant had been overcharged in the amount of $29,248.31
inclusive of treble damages and excess security.
In its appeal, the owner requests that the order be reversed or modified
to correct factual errors with regard to the base rent and the rent
GB210189RO
increase for individual apartment improvements as well as to remove the
finding of willfulness. With its appeal, the owner submits evidence not
previously provided in the proceeding before the Administrator, i.e., a
lease for the period April 1, 1985 through March 31, 1987 and additional
invoices for apartment improvements.
The tenant contends in response that the petition should be dismissed as
untimely. The tenant further contends that the late submission of
evidence by the owner should not be accepted because the owner had ample
opportunity in the proceeding before the Administrator to produce the
evidence but failed to do so and because the evidence submitted in favor
of the individual improvements increase is not credible. The tenant
notes that the increase approved by the Administrator was not warranted
by the evidence and should be eliminated.
Section 2529.6 of the Rent Stabilization Code provides in pertinent part
that an administrative review shall be limited to facts or evidence
before the Rent Administrator unless the petitioner establishes that
certain evidence could not have been offered in the proceeding prior to
the issuance of the order being appealed.
Review of the record discloses that the owner was afforded ample
opportunity to submit complete documentation. All requests for time
extensions were granted. The owner did not indicate that it could not
provide requested evidence before the order's issuance. Although the
owner submits with the appeal instances where evidence was accepted on
appeal, the owner offers no excuse or reasonable cause for its own
failure to timely submit complete documentation to the Administrator.
The Commissioner finds, therefore, that the owner has not established
that the evidence offered for the first time on appeal could not
reasonably have been offered in the proceeding before the Administrator.
Accordingly, the Commissioner finds there are no factual errors in the
order as written.
With regard to the imposition of treble damages, the Commissioner notes
that Section 2526.1 of the Rent Stabilization Code provides for a
penalty of treble damages for all willful overcharges. The Rent
Stabilization Law presumes that all overcharges are willful unless the
owner rebuts the presumption by a preponderance of the evidence.
After careful consideration of the record, the Commissioner finds that
the owner has not met its burden and that treble damages are warranted.
In consideration of the tenant's contentions, the Commissioner find that
the record discloses that the owner's appeal is timely.
Since the tenant did not file her own appeal, her contention with
respect to the individual improvements increase permitted by the
Administrator is rejected.
THEREFORE, in accordance with the provisions of the Rent Stabilization
Law and Code, it is
ORDERED, that this petition be, and the same hereby is, denied and the
Rent Administrator's order be, and the same hereby is, affirmed.
GB210189RO
ISSUED:
JOSEPH A. D'AGOSTA
Deputy Commissioner
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