GD 410227 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.: GD 410227 RO

                     RITA COPPOLECCHIA          DRO DOCKET NO.: ZDL 410239 R
                       DOVERO REALTY,
                                                TENANT: CATHERINE FURNESS     
                         
                                   PETITIONER    
          ------------------------------------X                             

             ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW


          On April 23, 1992, the above-named petitioner-owner filed a 
          Petition for Administrative Review against an order issued on March 
          20, 1992, by the Rent Administrator, 92-31 Union Hall Street, 
          Jamaica, New York, concerning the housing accommodations known as  
          235 East 89th Street, New York, New York, Apartment No. 2FN, 
          wherein the Rent Administrator determined that the owner had 
          overcharged the tenant.

          The Commissioner issued an order and opinion dismissing the owner's 
          petition on August 21, 1992 as untimely filed.

          Subsequent thereto, the petitioner requested reconsideration and 
          provided documentation from the United States Postal Service that 
          its petition was postmarked on April 23, 1992 and was a timely 
          filing against the Rent Administrator's order issued on March 20, 
          1992.

          The order granting reconsideration and re-opening of the 
          Administrative Review Order and Opinion, issued August 21, 1992, 
          was served on the tenant along with the owner's documentation.

          The tenant responded to the substance of the owner's petition but 
          did not contest the reopening.

          The evidence in file discloses that the owner's petition postmarked 
          on April 23, 1992 meets the criteria for the filing of a timely PAR 
          in that it was postmarked not more than 35 days after the issuance 
          date of the order appealed.

          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 







          GD 410227 RO

          issue raised by the administrative appeal.  

          This proceeding was originally commenced by the filing of a rent 
          overcharge complaint by the tenant on December 18, 1989.

          In the complaint, the tenant stated in substance that her rent had 
          been established by the Rent Administrator under CDR 23,652 (L 
          3112393 R) issued October 2, 1986 which had reduced her rent and 
          found an overcharge of $6,196.20 through February 28, 1986.  The 
          owner subsequently filed a petition for Administrative Review (AK 
          410512 RO) which was issued October 26, 1989 affirming the Rent 
          Administrator's order.  During the pendency of the PAR, the owner 
          had filed a petition in the Supreme Court pursuant to Article 78 of 
          the Civil Practice Law and Rules.  The courts issued a stay on the 
          enforcement of the Rent Administrator's order issued October 2, 
          1986 on April 27, 1987 which was lifted upon the withdrawal of the 
          Owner's Article 78 proceeding in June 1987.  The tenant who had 
          paid the rent set by the Rent Administrator's order, resumed paying 
          the higher rent in May 1987 and was not informed of the lifting of 
          the stay.  The tenant filed the overcharge complaint in December 
          1989 for the recovery of the overcharges paid from March 1, 1986 
          through October 30, 1986 and May 1, 1987 through the issuance of 
          the Commissioner's Order affirming the prior order on October 26, 
          1989.

          In addition, the tenant claimed treble damages for the period in 
          which the owner had collected the higher rent although the stay had 
          been lifted.

          In response to the tenant's complaint, the owner responded in 
          substance by the submission of documentation indicating that in 
          December 1989, after the issuance of the Commissioner's October 26, 
          1989 order affirming the Rent Administrator's Order, the owner had 
          tendered to the tenant a refund of the retroactive amount of the 
          overcharge stated in the Rent Administrator's order of $6,196.20 
          which the tenant had accepted and a check for $2,471.17 
          representing a refund of the principal of excess rent paid from 
          March 1, 1986 through November 30, 1989.  The tenant had refused to 
          cash the refund but instead filed the overcharge complaint on 
          December 18, 1989.

          In Order Number ZDL 410239 R, the Rent Administrator determined 
          that the tenant had been overcharged and directed a refund to the 
          tenant of $3,611.98 including interest on overcharges for the 
          period from March 1, 1986 through November 30, 1989.

          In this petition, the owner contends in substance that the Rent 
          Administrator's order should be modified to eliminate the 
          assessment of interest in the amount of $980.41 which was included 
          in the total overcharge of $3,611.98 because the owner had made an 
          ernest attempt to refund the principal prior to the filing of the 
          tenant's complaint in December 1989; the accrued interest is due 
          solely to the tenant's refusal to cash the check tendered in 
          December 1989 and DHCR's delay in processing the complaint; that 
          the discrepancy of $160.40 between the principal amount of 
          $2,471.17 tendered to the tenant in December 1989 and the principal 
          amount of $2,631.57 stated in the order was due to a minor 
          miscalculation by the owner in computing a 7 month rather than 8 


          GD 410227 RO

          month period from March 1, 1986 through October 30, 1986 and 
          reducing the overcharge by $90.00 in arrears.  Moreover, the owner 
          has substantiated that it had refunded the principal of $2,631.57 
          stated in the Rent Administrator's order by a check dated March 27, 
          1992 which was cashed by the tenant who subsequently returned the 
          uncashed check of $2,471.17.

          In answer to the owner's petition, the tenant stated in substance 
          that she had been advised by DHCR not to cash the December 1989 
          refund of $2,471.17 because she was filing the instant complaint 
          and claiming treble damages; that she advised the owner by phone 
          that she was not settling but filing the complaint because she did 
          not trust the owner's calculations and that the overcharge was 
          willful because the owner continued to accept the higher rent for 
          2 1/2 years after the lifting of the stay.

          The Commissioner is of the opinion that this petition should be 
          denied.

          With regard to the owner's contention that the imposition of 
          interest was not warranted, Section 2526.1 of the Rent 
          Stabilization Code provides in pertinent part that any owner who is 
          found by the DHCR to have collected a rent or other consideration 
          in excess of the legal regulated rent on and after April 1, 1984 
          shall be ordered to pay to the tenant a penalty equal to three 
          times the amount of such excess.  If the owner established by a 
          preponderance of the evidence that the overcharge was not willful, 
          the DHCR shall establish the penalty as the amount of the 
          overcharge plus interest from the date of the first overcharge on 
          or after April 1, 1984.

          In the instant case, the Rent Administrator determined that the 
          owner's attempts to refund the overcharges successfully rebutted 
          the presumption of willfulness and therefore denied the tenant's 
          claims for treble damages.

          The imposition of interest was mandated by Chapter 403 as an 
          alternative to the imposition of treble damages upon the owner's 
          successful rebuttal of the presumption of wilfulness.  However, if 
          treble damages are not imposed, the assessment of interest on 
          overcharges is mandatory.

          Further pursuant to Section 2520.13 of the Rent Stabilization Code, 
          the tenant was not required to waive her rights under the Rent 
          Stabilization Law by the acceptance of the owner's proposed 
          settlement nor precluded from filing an ancillary complaint of Rent 
          Overcharge to recover the excess rent for the period between the 
          Rent Administrator's order and the Commissioner's affirmation of 
          the order where the owner did not reduce the rent prospectively.  
          The Rent Administrator's order does not contain specific errors 
          raised by the owner and the Rent Administrator correctly imposed 
          interest on the overcharge.
          With regard to the tenant's contention in her response to the 
          Petition that the overcharge was willful, the Commissioner notes 
          that the tenant has failed to file her own petition against the 
          Rent Administrator's order raising the issue of wilfulness, and 
          therefore, it can not be introduced and considered under the 
          instant proceeding filed by the owner.







          GD 410227 RO


          According, the Rent Administrator's order was warranted.

          The Commissioner notes however that the owner has substantiated the 
          acceptance by the tenant of the principal amount of $2,631.57 in 
          March 1992 and therefore the remaining overcharge consists of the 
          balance of $980.41, assessed for simple interest at 9%.

          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, not in excess of twenty percent per month of the overcharge 
          may be offset against any rent thereafter due the owner.

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

          ORDERED, that this petition for administrative review be, and the 
          same hereby is, denied, and, that the order of the Rent 
          Administrator be, and the same hereby is, affirmed.  The balance of 
          the unrefunded overcharge is $980.41.



          ISSUED



                                                                           
                                          JOSEPH A. D'AGOSTA
                                          Acting Deputy Commissioner

    

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