N.Y. Emergency Tenant Protection Act 576/74 § 12: Enforcement and procedures

§ 12. Enforcement and procedures. a. (1) Subject to the conditions and

limitations of this paragraph, any owner of housing accommodations in a

city having a population of less than one million or a town or village

as to which an emergency has been declared pursuant to section three,

who, upon complaint of a tenant or of the state division of housing and

community renewal, is found by the state division of housing and

community renewal, after a reasonable opportunity to be heard, to have

collected an overcharge above the rent authorized for a housing

accommodation subject to this act shall be liable to the tenant for a

penalty equal to three times the amount of such overcharge. If the owner

establishes by a preponderance of the evidence that the overcharge was

neither willful nor attributable to his negligence, the state division

of housing and community renewal shall establish the penalty as the

amount of the overcharge plus interest at the rate of interest payable

on a judgment pursuant to section five thousand four of the civil

practice law and rules. After a complaint of rent overcharge has been

filed and served on an owner, the voluntary adjustment of the rent

and/or the voluntary tender of a refund of rent overcharges shall not be

considered by the division of housing and community renewal or a court

of competent jurisdiction as evidence that the overcharge was not

willful. (i) Except as to complaints filed pursuant to clause (ii) of

this paragraph, the legal regulated rent for purposes of determining an

overcharge, shall be deemed to be the rent indicated in the most recent

reliable annual registration statement for a rent stabilized tenant

filed and served upon the tenant six or more 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. The division of housing and community renewal

or a court of competent jurisdiction, in investigating complaints of

overcharge and in determining legal regulated rent, shall consider all

available rent history which is reasonably necessary to make such

determinations. (ii) As to complaints filed within ninety days of the

initial registration of a housing accommodation, the legal regulated

rent for purposes of determining an overcharge shall be deemed to be the

rent charged on the date six years prior to the date of the initial

registration of the housing accommodation (or, if the housing

accommodation was subject to this act for less than six years, the

initial legal regulated rent) plus in each case, any lawful increases

and adjustments. Where the rent charged on the date six years prior to

the date of the initial registration of the accommodation cannot be

established, such rent shall be established by the division.

(a) The order of the state division of housing and community renewal

shall apportion the owner's liability between or among two or more

tenants found to have been overcharged by such owner during their

particular tenancy of a unit.

(b) (i) Except as provided under clauses (ii) and (iii) of this

subparagraph, a complaint under this subdivision may be filed with the

state division of housing and community renewal or in a court of

competent jurisdiction at any time, however any recovery of overcharge

penalties shall be limited to the six years preceding the complaint.

(ii) A penalty of three times the overcharge shall be assessed upon

all overcharges willfully collected by the owner starting six years

before the complaint is filed.

(iii) Any complaint based upon overcharges occurring prior to the date

of filing of the initial rent registration as provided in subdivision b

of section twelve-a of this act shall be filed within ninety days of the

mailing of notice to the tenant of such registration.

(c) Any affected tenant shall be notified of and given an opportunity

to join in any complaint filed by an officer or employee of the state

division of housing and community renewal.

(d) An owner found to have overcharged shall, in all cases, be

assessed the reasonable costs and attorney's fees of the proceeding, and

interest from the date of the overcharge at the rate of interest payable

on a judgment pursuant to section five thousand four of the civil

practice law and rules.

(e) The order of the state division of housing and community renewal

awarding penalties may, upon the expiration of the period in which the

owner may institute a proceeding pursuant to article seventy-eight of

the civil practice law and rules, be filed and enforced by a tenant in

the same manner as a judgment or, in the alternative, not in excess of

twenty percent thereof per month may be offset against any rent

thereafter due the owner.

(f) Unless a tenant shall have filed a complaint of overcharge with

the division which complaint has not been withdrawn, nothing contained

in this section shall be deemed to prevent a tenant or tenants, claiming

to have been overcharged, from commencing an action or interposing a

counterclaim in a court of competent jurisdiction for damages equal to

the overcharge and the penalty provided for in this section, including

interest from the date of the overcharge at the rate of interest payable

on a judgment pursuant to section five thousand four of the civil

practice law and rules, plus the statutory costs and allowable

disbursements in connection with the proceeding. The courts and the

division shall have concurrent jurisdiction, subject to the tenant's

choice of forum.

(2) In addition to issuing the specific orders provided for by other

provisions of this act, the state division of housing and community

renewal shall be empowered to enforce this act and its regulations by

issuing, upon notice and a reasonable opportunity for the affected party

to be heard, such other orders as it may deem appropriate.

(3) If the owner is found by the commissioner:

(i) to have violated an order of the division the commissioner may

impose by administrative order after hearing, a civil penalty at minimum

in the amount of one thousand but not to exceed two thousand dollars for

the first such offense, and at minimum in the amount of two thousand but

not to exceed three thousand dollars for each subsequent offense; or

(ii) to have harassed a tenant to obtain vacancy of his housing

accommodation, the commissioner may impose by administrative order after

hearing, a civil penalty for any such violation. Such penalty shall be

at minimum in the amount of two thousand but not to exceed three

thousand dollars for the first such offense, and at minimum in the

amount of ten thousand but not to exceed eleven thousand dollars for

each subsequent offense or for a violation consisting of conduct

directed at the tenants of more than one housing accommodation.

Such order shall be deemed a final determination for the purposes of

judicial review. Such penalty may, upon the expiration of the period for

seeking review pursuant to article seventy-eight of the civil practice

law and rules, be docketed and enforced in the manner of a judgment of

the supreme court.

(4) Any proceeding pursuant to article seventy-eight of the civil

practice law and rules seeking review of any action pursuant to this act

shall be brought within sixty days of the expiration of the ninety day

period and any extension thereof provided in subdivision c of this

section or the rendering of a determination, whichever is later. Any

action or proceeding brought by or against the commissioner under this

act shall be brought in the county in which the housing accommodation is

located.

(5) Violations of this act or of the regulations and orders issued

pursuant thereto may be enjoined by the supreme court upon proceedings

commenced by the state division of housing and community renewal or the

tenant or tenants who allege they have been overcharged. The division

shall not be required to post bond.

(6) In furtherance of its responsibility to enforce this act, the

state division of housing and community renewal shall be empowered to

administer oaths, issue subpoenas, conduct investigations, make

inspections and designate officers to hear and report. The division

shall safeguard the confidentiality of information furnished to it at

the request of the person furnishing same, unless such information must

be made public in the interest of establishing a record for the future

guidance of persons subject to this act.

(7) In any action or proceeding before a court wherein a party relies

for a ground of relief or defense or raises issue or brings into

question the construction or validity of this act or any regulation,

order or requirement hereunder, the court having jurisdiction of such

action or proceeding may at any stage certify such fact to the state

division of housing and community renewal. The state division of housing

and community renewal may intervene in any such action or proceeding.

(8) Except where a specific provision of this law requires the

maintenance of rent records for a longer period, including records of

the useful life of improvements made to any housing accommodation or any

building, any owner who has duly registered a housing accommodation

pursuant to section twelve-a of this act shall not be required to

maintain or produce any records relating to rentals of such

accommodation more than six years prior to the most recent registration

or annual statement for such accommodation. However, an owner's election

not to maintain records shall not limit the authority of the division of

housing and community renewal and the courts to examine the rental

history and determine legal regulated rents pursuant to this

subdivision.

(9) The division of housing and community renewal and the courts, in

investigating complaints of overcharge and in determining legal

regulated rents, shall consider all available rent history which is

reasonably necessary to make such determinations, including but not

limited to (a) any rent registration or other records filed with the

state division of housing and community renewal, or any other state,

municipal or federal agency, regardless of the date to which the

information on such registration refers; (b) any order issued by any

state, municipal or federal agency; (c) any records maintained by the

owner or tenants; and (d) any public record kept in the regular course

of business by any state, municipal or federal agency. Nothing contained

in this paragraph shall limit the examination of rent history relevant

to a determination as to:

(i) whether the legality of a rental amount charged or registered is

reliable in light of all available evidence including, but not limited

to, whether an unexplained increase in the registered or lease rents, or

a fraudulent scheme to destabilize the housing accommodation, rendered

such rent or registration unreliable;

(ii) whether an accommodation is subject to the emergency tenant

protection act;

(iii) whether an order issued by the division of housing and community

renewal or a court of competent jurisdiction, including, but not limited

to an order issued pursuant to section seven of this act, or any

regulatory agreement or other contract with any governmental agency, and

remaining in effect within six years of the filing of a complaint

pursuant to this section, affects or limits the amount of rent that may

be charged or collected;

(iv) whether an overcharge was or was not willful;

(v) whether a rent adjustment that requires information regarding the

length of occupancy by a present or prior tenant was lawful;

(vi) the existence or terms and conditions of a preferential rent, or

the propriety of a legal registered rent during a period when the

tenants were charged a preferential rent;

(vii) the legality of a rent charged or registered immediately prior

to the registration of a preferential rent; or

(viii) the amount of the legal regulated rent where the apartment was

vacant or temporarily exempt on the date six years prior to a tenant's

complaint.

b. Within a city having a population of one million or more, the state

division of housing and community renewal shall have such powers to

enforce this act as shall be provided in the New York city rent

stabilization law of nineteen hundred sixty-nine, as amended, or as

shall otherwise be provided by law. Unless a tenant shall have filed a

complaint of overcharge with the division which complaint has not been

withdrawn, nothing contained in this section shall be deemed to prevent

a tenant or tenants, claiming to have been overcharged, from commencing

an action or interposing a counterclaim in a court of competent

jurisdiction for damages equal to the overcharge and the penalty

provided for in this section, including interest from the date of the

overcharge at the rate of interest payable on a judgment pursuant to

section five thousand four of the civil practice law and rules, plus the

statutory costs and allowable disbursements in connection with the

proceeding. The courts and the division shall have concurrent

jurisdiction, subject to the tenant's choice of forum.

c. The state division of housing and community renewal may, by

regulation, provide for administrative review of all orders and

determinations issued by it pursuant to this act. Any such regulation

shall provide that if a petition for such review is not determined

within ninety days after it is filed, it shall be deemed to be denied.

However, the division may grant one extension not to exceed thirty days

with the consent of the party filing such petition; any further

extension may only be granted with the consent of all parties to the

petition. No proceeding may be brought pursuant to article seventy-eight

of the civil practice law and rules to challange any order or

determination which is subject to such administrative review unless such

review has been sought and either (1) a determination thereon has been

made or (2) the ninety-day period provided for determination of the

petition for review (or any extension thereof) has expired.