HH210047RO

                                  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.HH210047RO
                                              :  DRO DOCKET NO.ZBL210329R
              JAMES P. TIERNEY                   TENANT: ROSE MARIE CASTRO

                                PETITIONER    : 
          ------------------------------------X                             
             ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW


               On August 16, 1993, the above-named petitioner-owner filed a 
          Petition for Administrative Review against an order issued on July 
          28, 1993, by the Rent Administrator, 92-31 Union Hall Street, 
          Jamaica, New York, concerning the housing accommodations known as 
          7129 Fifth Avenue, Brooklyn, New York, Apartment No. 4 or 3F, 
          wherein the Rent Administrator determined that the owner had 
          overcharged the tenant.

               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 issue raised by the administrative appeal.  

               This proceeding was commenced on December 23, 1987, by the 
          tenant's filing of a rent overcharge complaint in which the tenant 
          listed the owner as Panbros. Realty at 87 & 4th Avenue, Brooklyn, 
          New York, 11209.  The tenant stated that she had moved to the 
          subject apartment on September 1, 1985 at a rental of $350.00 per 
          month.  A copy of the tenant's complaint along with a notice and 
          answer forms was sent to Panbros. Realty at 87 Fourth Avenue, 
          Brooklyn, New York, 11209.  This mailing was returned by the Post 
          Office as undelivered.  

               On July 24, 1990, a Notice of Non-Compliance to the Initial 
          Rent Registration Requirements directing the owner to submit a 
          complete rental history for the subject apartment was sent to the 
          owner James Tierney at 8806 Fourth Avenue, Brooklyn, New York, 
          11209.  On March 24, 1993, a copy of the tenant's complaint, answer 
          forms and a Final Notice regarding treble damages were sent to the 
          owner James Tierney, c/o Michael LeSeur at 101 93rd Street, 
          Brooklyn, New York, 11209.

               In response to the March 24, 1993 notices, the owner stated in 
          substance that he never received any notice of this proceeding until 









          HH210047RO




          the March 24, 1993 notices were sent; that the earlier notice to 
          Panbros. Realty was sent to the wrong address since Pan Brothers 
          Realty is located at 8806 4th Avenue; that he is required to 
          maintain rent records for only four years so that he should not have 
          to produce records of vacancy improvements made in 1985 which 
          occurred eight to nine years ago; that the tenant's complaint should 
          be dismissed since the owner was not notified of it until after four 
          years had passed; and that in any event treble damages should not be 
          imposed since it was DHCR's negligence that placed him in the 
          position of having to prove apartment renovations 8 to 9 years after 
          the fact.  Subsequently, the owner submitted proof that he filed the 
          annual registrations for the subject apartment for 1989 and 1990 in 
          1993.   The principal of the owner's then managing agent Pan 
          Brothers Realty submitted an affidavit to the effect that it did 
          renovation work in the bathroom of the subject apartment costing 
          approximately $2200.00 but that it had no proof of same.  The tenant 
          denied that bathroom work had been done in the subject apartment.

               In Order Number ZBL210329R, the Rent Administrator found a rent 
          overcharge of $27,672.87 based on the owner's failure to timely 
          register for 1989 and 1990 and failure to supply proof of any 
          renovation work done in the subject apartment.

               In this petition, the owner resubmits his earlier reply to the 
          March 24, 1993 notices.  Subsequently, the owner stated that the 
          Rent Regulation Reform Act of 1993 should be applicable and he 
          should not be penalized for the failure to timely file the 1989 and 
          1990 registrations. 

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

               Section 2526.1 of the Rent Stabilization Code provides in 
          pertinent part that an overcharge complaint must be filed with the 
          DHCR within four years of the first overcharge alleged and no award 
          of the amount of an overcharge may be based upon an overcharge 
          having occurred more than four years before the complaint is filed. 
          Except as to complaints filed within ninety days of the initial 
          registration, the legal regulated rent for purposes of determining 
          an overcharge shall be deemed to be the rent shown in the annual 
          registration statement filed four years prior to the most recent 
          registration statement, (or, if more recently filed, the initial 
          registration statement) plus in each case any subsequent lawful 
          increases and adjustments.

               In the instant case, the tenant's complaint was filed in 
          December, 1987 and the records indicate that the owner registered 
          the April 1, 1984 rent as required.  Accordingly, the owner was 
          responsible for submitting a complete rental history from April 1, 
          1984 including evidence of any claimed improvements completed during 
          this period.  The fact that there was a delay in serving the owner 






          HH210047RO

          with a copy of the tenant's overcharge complaint does not excuse the 
          failure to supply a complete rental history.  Moreover, the owner 
          was directed to submit a complete rental history in a notice dated 
          July 24, 1990 sent to his then last registered address so that the 
          first notice of this proceeding was not sent to the owner in 1993 as 
          the owner claims.  Further, the Rent Regulation Reform Act of 1993 
          is not applicable to this proceeding as such Act's applicability to 
          late registrations is limited to proceedings docketed by the DHCR on 
          or after July 1, 1991 whereas this proceeding was docketed in 1987.  
           Finally, the owner has not established that the overcharge was not 
          willful.  Therefore the imposition of treble damages was warranted.

               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 this order plus any lawful 
          increases.

               The Commissioner has determined in this Order and Opinion that 
          the owner collected overcharges of $27,672.87.  This Order may, upon 
          expiration of the period for seeking review of this Order and 
          Opinion pursuant to Article Seventy-eight of the Civil Practice Law 
          and Rules, be filed and enforced as a judgment or not in excess of 
          twenty percent per month of the overcharge may be offset against any 
          rent thereafter due the owner.  Where the tenant credits the 
          overcharge, the tenant may add to the overcharge, or where the 
          tenant files this Order as a judgment, the County Clerk may add to 
          the overcharge, interest at the rate payable on a judgment pursuant 
          to section 5004 of the Civil Practice Law and Rules from the 
          issuance date of the Rent Administrator's Order to the issuance date 
          of the Commissioner's Order.

               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.

          ISSUED



                                                                        
                                          LULA M. ANDERSON
                                          Deputy Commissioner






    

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