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



      ------------------------------------X 
      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    : 
      ------------------------------------X                             


           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





    

TenantNet Home | TenantNet Forum | New York Tenant Information
DHCR Information | DHCR Decisions | Housing Court Decisions | New York Rent Laws
Disclaimer | Privacy Policy | Contact Us

Subscribe to our Mailing List!
Your Email      Full Name