STATE OF NEW YORK
DIVISION OF HOUSING AND COMMUNITY RENEWAL
OFFICE OF RENT ADMINISTRATION
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
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
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
In his answer, the owner alleged that the subject building was
registered with DHCR for all years, and therefore, the owner had
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
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
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
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
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
JOSEPH A. D'AGOSTA