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Re: DHCR OVERCHARGE QUESTION : answer: yes

Posted by Sam on February 28, 1999 at 16:02:31:

In Reply to: Re: DHCR (OVERCHARGE QUESTION )?? posted by Screwed? on February 28, 1999 at 13:43:16:

: : :
: : : SENATOR CONNOR CARRIES ON FIGHT AGAINST
: : : "DRYWALL DECONTROL"
: : : "
: : what will they think of next? click on link below for the whole article.

: :
: : Here's what they will think up next:::::

: : The 1997 RRRA has a retroactive element called the four year rule, so if the LL files Fraudulent or
: : NO Intial rent or yearly rent doucuments and they get caught,
: : the DHCR will allow them to admend them
: : so there is NO treble damage penalty or overcharge.

:
: Is there any way to circumvent this? I am filing my answer to a non-payment petition and one of my many arguments is rent overcharge. LL filed NO initial rent or yearly documents and willfully overcharged. I am afraid that once he reads the answer that I give to the clerk, his lawyer will in fact RUN down to DHCR and retroactivly file. Do I have to include overcharge in my answer to the clerk, or can I raise it orally at the hearing, giving the lawyer no chance to retro-file?(sounds like a desperate and hinky ploy, I know -but what else can I do?)

: Also, I have made my overcharge complaint to DHCR, but isn't it true that they have to inform the LL to get his side of the story before rendering a judgement? What good is it to file the complaint of past overcharge if the LL can easily make it dissapear?

Yes: you must include it in your answer as both a defense and a counterclaim or you might lose it, and if he does file with DHCR before you get to a judge, the overcharge will disappear. Get a lawyer or get photocopy of one of these casefiles from the courthouse and use either the PreAnswer Motion to Dismiss or the Summary Judgement mentho: do no use the Oral Answer to clerk method. Read also earlier Jan/Feb emails on this board for more insight.
ps: willfully is presumed in the law: the landlord must prove that it was not willfull.

KIRSCHBAUM v. MARTINEZ

New York Law Journal
August 19, 1998

CIVIL COURT

----)----
HOUSING, PART H

Judge Callender

* KIRSCHBAUM v. MARTINEZ-- QDS:46700160 -- The respondent moves for summary
judgment and dismissal against the petitioner claiming the petitioner failed to properly register
the subject premises with DHCR. The respondent submitted certified DHCR records showing
that subject premises were not registered with DHCR for 1986 through 1988. The DHCR
records also made evident the fact that the last preceding annual registration (1985) revealed a
rental amount of $358.28 monthly.

The Rent Stabilization Law still bars the application for and collection of increases in rent
for landlords who have not properly and timely filed their annual rent registration statements.
The law actually bars any increases in excess of the legally regulated rent in effect on the date
of the last preceding registration statement. (See 1997 RRRA, RSL ;26-517[e]). While one may
file a late registration the effect of the delinquent filing is that the sanction or penalty is
eliminated for the future. (See NYC Admin. Code ;26-517[c]).

It seems clear that the owner waives his right to collect increases until he files a proper and
legally accurate registration for 1986 through 1988. (See Section 26-517[e] of the RSL, and 9
NYCRR, Sections 2525.1 and 2528.4).

The courts have continually upheld such a construction of the aforementioned statutes.
(See 17 East 101st Street Assocs. v. Huguenin, NYLJ, Aug. 3, 1994, at 26, col.2 [Civ. Ct. NY
Cty.]); and Nerveniotis v. Cacioppo, NYLJ, Mar. 23, 1995 at 34, Col.6 [App. Term 2d Dept]).

In the instant case, the petitioner has not yet filed the registration for 1986-1988.
Accordingly, the rent remains at the legally regulated amount of $358.28, which was the amount
stated in the 1985 annual registration. That amount this court finds is the maximum legal rent
presently in effect.

The court observes that the petitioner sought a monthly rent of $509.78 in the petition. The
court finds that this demand exceeds the amount legally sufficient by $151.50 per month for the
period of September 1997 through July, 1998. The amount demanded exceeds the amount that
is legally required by $1,666.50. Therefore the petition is dismissed because it demands an
amount substantially above the maximum legally regulated rent. The court notes that the
respondent also seeks an order to correct the conditions set forth in her answer pursuant to
NYCCA S110 and the Housing Maintenance Code. Since there has been no opposition put
forward by the petitioner, that motion is granted.

The respondent may submit an order for the court to sign listing the conditions requiring
the correction of the violations, along with the class of the violation and the time requirements
for removal.

This decision constitutes the Order of this Court.


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