HH410094RO
                             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  SJR No. 7321 and 7305
      IN THE MATTER OF THE ADMINISTRATIVE :  ADMINISTRATIVE REVIEW
      APPEAL OF                              DOCKET NO. HH410094RO

          Ben Fishbein                    :  DISTRICT RENT ADMINISTRATOR'S
                                             DOCKET NO. AJ410464R
                                            
                                             TENANT: Randolph Ostrow     
                            PETITIONER    : 
      ------------------------------------X                             

           ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW

      On August 26, 1993, the above-named owner filed a petition for 
      administrative review of an order issued on July 23, 1993 by a Rent 
      Administrator concerning the housing accommodations known as 98 
      MacDougal Street, Apartment No. 5A, New York, New York, wherein the 
      Administrator determined that the owner had overcharged the tenant.

      Subsequently, and after more than ninety days had elapsed from the time 
      it filed its petition for administrative review, the owner deemed its 
      petition as having been denied and sought judicial review in the Supreme 
      Court of the State of New York pursuant to Article 78 of the Civil 
      Practice Law and Rules.

      After considering the Article 78 petition, the court remitted this 
      proceeding to the Division of Housing and Community Renewal (DHCR) and 
      ordered the expeditious determination of the owner's administrative 
      appeal.

      The Commissioner has reviewed all of the evidence in the record and has 
      carefully considered that portion of the record relevant to the issues 
      raised by the administrative appeal.  

      This proceeding was commenced by the filing of an overcharge complaint.  
      The complaint indicated that the tenant had not been served with a copy 
      of the Initial Apartment Registration Form (RR-1).  

      On September 30, 1988, the owner was notified that it was required to 
      produce evidence to show proof of service of the RR-1 form on the 
      tenant.  This notice advised the owner what types of evidence would 
      constitute conclusive proof of service on the tenant and advised the 
      owner what types of penalties would be assessed for the owner's failure 
      to produce evidence of service of the RR-1 on the tenant.

      On February 14, 1989, DHCR sent the owner a notice of non-compliance to 
      the initial registration requirements indicating that the owner had "... 
      failed to submit to this Agency the required proof of service of the 
      Initial Rent Registration Form, RR-1, on the tenant ...."  Again, the 
      penalties involved and possibility of treble damage were described to 
      the owner.
      In his answer, the owner alleged that the subject building was 
      registered with DHCR for all years, and therefore, the owner had 







          HH410094RO


      satisfied the registration requirement.  Further, the owner attempted to 
      explain all of the rent increases appearing in the rent history of the 
      subject apartment.  At the same time, the owner acknowledged that he 
      could not locate a copy of the RR-1.

      In the Administrator's order it was determined that the owner had failed 
      to prove service of the Initial Apartment Registration on the tenant.  
      Accordingly, the rent was frozen at the lawful stabilization rent in 
      effect on April 1, 1984 as calculated by the Administrator.  The 
      Administrator further determined that the owner had failed to prove a 
      lack of willfulness and treble damages were assessed on all overcharges 
      beginning October 14, 1984.

      In his petition for administrative review, the owner again claims that 
      he has met all DHCR requirements in registering the subject premises in 
      1984.  The owner also stated that he had submitted a rental history, 
      that no overcharge occurred, and that because no overcharge occurred, 
      there could not have been a willful overcharge.

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

      The registration process is a two-pronged procedure with which every 
      owner of rent stabilized housing must comply.  The first element of the 
      procedure is filing the appropriate registration forms with DHCR.  The 
      second step of the procedure is to serve the tenant with copies of the 
      appropriate registration forms.  Both elements must be complied with in 
      order for the registration to be fully completed.

      In the instant case there is no question that the owner complied with 
      the DHCR filing requirements.  However, the entire inquiry in this 
      proceeding involved the second element of the process.  Namely, the 
      owner was requested to prove that the tenant had been served with the 
      RR-1 in 1984 in accordance with Section 2528.2(d) of the Rent 
      Stabilization Code.

      The Commissioner is of the opinion that the notices sent to the owner 
      were clearly written and clearly defined what information and evidence 
      were being requested.  On each occasion that the owner was requested to 
      prove service of the RR-1 on the tenant, the owner responded by 
      addressing the separate question of the filing of the registration form 
      with DHCR.  Accordingly, the Administrator correctly found that the 
      owner had failed to fully comply with registration requirement and 
      properly froze the rent at the lawful stabilization rent computed for 
      April 1, 1984.

      Further, the owner has pointed to no specific errors made by the 
      Administrator in his calculations.  A petition for administrative review 
      is not a de novo proceeding.  Accordingly, the Commissioner finds that 
      the petition for administrative review does not raise issues sufficient 
      to warrant a reexamination of each and every computation made by the 
      Administrator.

      Finally, the Commissioner is of the opinion the the Administrator 
      correctly assessed trebled damages on those overcharges which began to 
      accrue two years before the filing of the complaint.  Section 
      2526.1(a)(1) of the Rent Stabilization Code requires the assessment of 


          HH410094RO


      treble damages on all overcharges unless the owner can establish by a 
      preponderance of the evidence that the overcharge was not willful.  The 
      Commissioner agrees with the Administrator's determination that the 
      owner failed to sustain this burden of proof.

      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 $51,513.48.  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 Rent Stabilization Law and Code, it is

      ORDERED, that this petition for administrative review be, and the same 
      hereby is, denied, and the Administrator's order be, and the same hereby 
      is, affirmed.


      ISSUED:



                                                                    
                                      JOSEPH A. D'AGOSTA
                                      Deputy Commissioner





    

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