GD 110230 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
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IN THE MATTER OF THE ADMINISTRATIVE : ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO. GD 110230 RO
: DISTRICT RENT OFFICE
Man Kit Sze, DOCKET NO. ZDK 110143 R
TENANT: Damarz Marmal
PETITIONER :
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ORDER AND OPINION GRANTING PETITION FOR
ADMINISTRATIVE REVIEW IN PART
On April 27, 1992, the above-named petitioner-owner filed a Petition for
Administrative Review against an order issued on March 27, 1992, by the
Rent Administrator, 92-31 Union Hall Street, Jamaica, New York,
concerning the housing accommodations known as 35-15 94th Street,
Jackson Heights, New York, Apartment No. 4C, wherein the Administrator
determined that the owner had overcharged the tenant.
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 by the filing of a rent
overcharge complaint by the tenant on November 14, 1989.
The owner was served with a copy of the tenant's complaint and submitted
a rental history as required. The owner stated in substance that he had
made major improvements to the subject apartment after the former tenant
had vacated and before the complainant signed a lease and that since
there was no tenant of record, written tenant consent for the
improvements was not necessary.
In the order here under review, the Administrator disallowed a rent
increase for the improvements and directed the owner to refund
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overcharges of $8,065.86 inclusive of treble damages.
In this appeal, the owner requests that his answer to the complaint be
reconsidered to allow the 1/40th rent increase. The owner asserts that
he began renovations in the subject apartment after the prior tenant
vacated. The current tenant, who had illegally occupied the apartment
while the renovation was in progress, consented to the renovation as a
condition precedent to being given a lease. In the alternative of
reversing the Administrator's order in its entirety, the owner requests
that since he acted in good faith in making the improvements, the
imposition of treble damages be removed.
The Commissioner is of the opinion that this petition should be granted
in part.
Section 2522.4 of the Rent Stabilization Code provides that where there
has been an installation of new equipment or improvements in a
stabilized apartment, the stabilization rent for said unit may be
increased by 1/40th of the cost of such improvements provided the tenant
then in occupancy has consented thereto in writing. In addition, in the
case of vacant housing accommodations, tenant consent is not required.
Although the subject apartment was renovated before the tenant's lease
commenced, the record reveals that the tenant was in occupancy, and the
owner accepted rent from the tenant while the work was being done during
the two months before the commencement of the lease term. Accordingly,
pursuant to Code Section 2522.4, the owner should have procured the
tenant's written consent. The Commissioner finds, therefore that the
Administrator correctly disallowed the rent increase.
The Rent Stabilization Law provides for the assessment of treble damages
on all willful overcharges. The statute creates a presumption of
willfulness, rebuttable by the owner proving non-willfulness by a
preponderance of the evidence.
In the instant case, the owner made improvements to the subject
apartment but neglected to get written tenant consent in the mistaken
belief that because the tenant had not signed a lease, such consent was
unnecessary. The record discloses that on two occasions the tenant did
not respond to request for information concerning the improvements.
However, the tenant has never stated that the work was not done. The
Commissioner finds that in such circumstances the overcharge was not
willful, removes the treble damages penalty and pursuant to Code Section
2526.1 assesses interest on the overcharge. Accordingly, the owner is
directed to refund $2,946.71 inclusive of interest on the overcharge
occurring from August 1, 1989 to September 30, 1989 rather than
refunding the overcharge including treble damages.
Because this determination concerns lawful rents only through September
30, 1991 the owner is cautioned to adjust subsequent rents to an amount
no greater than that determined by the Rent Administrator's order plus
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any lawful increases.
If the owner has already complied with the Administrator's order and
there are arrears due to the owner as a result of the present
determination, the owner is directed to allow the tenant to pay off the
arrears in twenty fair equal monthly installments. Should the tenant
vacate after the issuance of this order, or have previously vacated said
arrears shall be payable immediately.
This order may, upon the expiration of the period in which the owner may
institute a proceeding pursuant to Article 78 of the Civil Practice Law
and Rules, be filed and enforced in the same manner as a judgment or not
in excess of twenty percent per month thereof may be offset against any
rent thereafter due the owner.
THEREFORE, in accordance with the Rent Stabilization Law and Code, it is
ORDERED, that this petition be, and the same hereby is, granted in part,
and, that the Rent Administrator's order be, and the same hereby is,
modified in accordance with this order and opinion.
ISSUED:
JOSEPH A. D'AGOSTA
Acting Deputy Commissioner
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