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
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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 :
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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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