HC210192RO
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.: HC210192RO
Streamline Mgt., Inc., DRO DOCKET NO.: EE210381R
PETITIONER
------------------------------------X
ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
IN PART
On March 2, 1993, the above-named owner filed a Petition for
Administrative Review against a Rent Administrator's order issued on
January 29, 1993, in which it was determined that the tenant of the
housing accommodations known as Apt. LB4 at 200 East 17th Street,
Brooklyn, had been overcharged.
This proceeding had originated with the tenant's complaint of May, 1990.
In answer the owner submitted inter alia, a copy of a lease that had
commenced on November 1, 1987, in which the monthly rent was stated as
"$479.07 (includes new refrigerator and stove)," with a rider showing
that rent as being derived from: a 16% increase over the previous
rental, plus "$11.00 new refrigerator [and] $3.00 new stove." The
Administrator requested documentary substantiation of the expenditures
for those appliances, but such was not provided.
The ensuing order, here appealed, states inter alia (1) that the owner
failed to document the cost or the installation of improvements to the
apartment, and will not therefore be permitted to increase the rent by
1/40 of "the amount claimed" and (2) that because "evidence indicates
that the overcharge was willful," the overcharge collected after May 21,
1988, would be trebled to penalize that willfulness. A total overcharge
of $3,199.05 was found.
In attacking that order, the owner has attached to its petition a copy
of what it states to be the bill of sale for the aforementioned stove
and refrigerator, arguing (a) that the tenant's first lease clearly
showed that she was aware that her rent would take into consideration an
increase for those items, (b) that the aforementioned bill constitutes
"further backup to the increase in question" and (c) that there should
at any rate be no treble damage penalty, as this overcharge was "clearly
not done willfully."
The tenant responds to the effect that when she signed the lease she was
HC210192RO
not informed that she would be "charged extra" for a new stove and
refrigerator, that when she moved in she found inoperable appliances,
that when she told the owner of the situation the owner installed new
ones (which the tenant had not requested) without telling her that she
would be "charged extra' for them, and that if she had known the owner's
intentions, the tenant "would have opted for used working appliances
instead."
The Commissioner is of the opinion that this petition should be granted
in part.
Two fundamental rules preclude the owner's taking a rental increase for
the aforementioned new appliances. The first is that the amount paid
for an improvement must be substantiated and the second, that that
substantiation must be before the Administrator, not submitted for the
first time on appeal. Thus regardless of tenant consent, petitioner's
proffer of a bill that it never submitted to the Administrator, cannot
suffice to win recognition of an improvement-based rental increase.
There is on the other hand no doubt that those improvements were made
and (despite what the tenant now suggests) that they qualify as
"vacancy" improvements. In proving those facts to the Administrator,
the owner proved that the rental increase for those improvements did not
cause a willful overcharge. The treble damages herein, which were all
attributable to the improvement-based increase in the tenant's initial
lease, will therefore be rescinded, and interest will instead be
assessed thereon.
The tenant's assertion that she neither expected nor desired new
appliances, finally, is (to the extent it is relevant at all) belied by
the fact that she signed a lease specifically mentioning same for a
tenancy stated as beginning three days later.
The owner is directed to reflect the findings and determinations made in
this order on all future registration statements, including those for
the current year if not already filed, citing this order as the basis
for the change. Registration statements already on file, however,
should not be amended to reflect the findings and determinations made in
this order. The owner is further directed to adjust subsequent rents to
an amount no greater than that determined by the Administrator's order
plus any lawful increases.
If the owner has already complied with the Rent Administrator's order
and there are arrears due to the owner as a result of the instant
determination, the tenant is permitted to pay off the arrears in 12
equal monthly installments. Should the tenant vacate after the issuance
of this order or have already 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 more than 20 percent per month thereof may be offset against any
HC210192RO
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 to the
extent set forth above, the Rent Administrator's order being modified to
the same extent. The total overcharge as of January 31, 1993 (including
interest and excessive security deposited) is $1,475.33.
ISSUED:
JOSEPH A. D'AGOSTA
Deputy Commissioner
|
