N.Y. Comp. Codes R. & Regs. tit. 9 § 2506.1

Current through Register Vol. 46, No. 45, November 2, 2024

Section 2506.1 - Determination of legal regulated rents; penalties; fines; assessment of costs; attorney's fees; rent credits; where the proceeding is commenced prior to June 14, 2019

(a)

(1) Any owner who is found by the division, after a reasonable opportunity to be heard, to have collected any rent or other consideration in excess of the legal regulated rent shall be ordered to pay to the tenant a penalty equal to three times the amount of such excess, except as provided in subdivision (f) of this section. In no event shall such treble damage penalty be assessed against an owner based solely upon the owner's failure to file any timely or proper rent registration statement. If the owner establishes by a preponderance of the evidence that the overcharge was neither willful nor attributable to negligence, the division shall establish the penalty as the amount of the overcharge, plus interest, which interest shall accrue from the date of the first overcharge on or after the base date, at the rate of interest payable on a judgment pursuant to section 5004 of the Civil Practice Law and Rules, and the order shall direct such a payment to be made to the tenant.

(2) A complaint pursuant to this section must be filed with the division within four years of the first overcharge alleged, and no determination of an overcharge and no award or calculation of an award of the amount of an overcharge may be based upon an overcharge having occurred more than four years before the complaint is filed; additionally:

(i) no penalty of three times the overcharge may be based upon an overcharge having occurred more than two years before the complaint is filed or upon an overcharge which occurred prior to April 1, 1984; and

(ii) subject to subparagraphs (iii), (iv), (v), (vi), (vii), (viii) and (ix) of this paragraph, the rental history of the housing accommodation prior to the four-year period preceding the filing of a complaint pursuant to this section, and section 2502.3 of this Title shall not be examined and examination of a rent registration for any year commencing prior to the base date, as defined in section 2500.2(q) of this Title, whether filed before or after such base date shall be precluded;

(iii) except in the case of decontrol pursuant to section 2500.9(m) or (n) of this Title, nothing contained in this section shall limit a determination as to whether a housing accommodation is subject to the RSL and this Subchapter, nor shall there be a limit on the continuing eligibility of an owner to collect rent increases pursuant to section 2502.4 of this Title, which may have been subject to deferred implementation, pursuant to section 2502.4(a)(3)(vi) in order to protect tenants from excessive rent increases;

(iv) in a proceeding pursuant to this section the rental history of the housing accommodation pre-dating the base date may be examined for the limited purpose of determining whether a fraudulent scheme to destabilize the housing accommodation or a conditional rental under section 2505.3(c) rendered unreliable the rent on the base date;

(v) an order issued pursuant to section 2503.4(a) of this Title remaining in effect within four years of the filing of a complaint pursuant to this section may be used to determine an overcharge or award an overcharge or calculate an award of the amount of an overcharge;

(vi) for the purpose of determining if the owner establishes by a preponderance of the evidence that the overcharge was not willful, an examination of the rental history of the housing accommodation prior to the four-year period preceding the filing of a complaint pursuant to this section shall not be precluded;

(vii) for the purpose of determining any adjustment in the legal regulated rent pursuant to section 2502.7(a)(2)(ii) of this Title, or any adjustment pursuant to a guideline promulgated by a county rent guidelines board that requires information regarding the length of occupancy by a present or prior tenant or the rent of such tenants, the review of rental history of the housing accommodation prior to the four-year period preceding the filing of a complaint pursuant to this section shall not be precluded;

(viii) for the purposes of establishing the existence or terms and conditions of a preferential rent under section 2501.2(c) of this Title, review of rental history of the housing accommodation prior to the four-year period preceding the filing of a complaint pursuant to this section shall not be precluded;

(ix) for the purpose of establishing the legal regulated rent pursuant to subparagraph (3)(iii) of this subdivision where the apartment was vacant or temporarily exempt on the base date, review of rental history of the housing accommodation prior to the four-year period preceding the filing of a complaint pursuant to this section shall not be precluded.

(3)

(i) The legal regulated rent for purposes of determining an overcharge shall be deemed to be the rent charged on the base date, plus in each case any subsequent lawful increases and adjustments.

(ii) Where the rent charged on such dates cannot be established, the rent shall be determined by the division in accordance with section 2502.6 of this Title.

(iii) Where a housing accommodation is vacant or temporarily exempt from regulation pursuant to section 2500.9 of this Title on the base date, the legal regulated rent shall be the prior legal regulated rent for the housing accommodation, the appropriate increase under section 2502.7 of this Title, and if vacated or temporarily exempt for more than one year, as further increased by successive two year guideline increases that could have otherwise been offered during the period of such vacancy or exemption and such other rental adjustments that would have been allowed under this Subchapter.

(b) The division shall apportion the landlord's liability between or among two or more tenants found to have been overcharged during their particular occupancy of an accommodation.

(c) Any effected tenant shall be given notice and an opportunity to join in any complaint filed by an officer or employee of the division.

(d) A landlord, who is found to have overcharged by the division, shall be assessed and ordered to pay to the tenant the reasonable costs and attorneys' fees of the proceeding and interest from the date of the overcharge at the rate of interest payable on a judgment pursuant to section 5004 of the Civil Practice Law and Rules.

(e) A tenant may recover a penalty payable to him by deducting it from the rent payable to the landlord at a rate not in excess of 20 percent of the amount of the penalty for any one month's rent. If no such offset has been made, the division order awarding penalties may, upon the expiration of the period in which the landlord may institute a proceeding pursuant to article 78 of the Civil Practice Law and Rules, be filed and enforced by a tenant in the same manner as a judgment.

(f) Responsibility for overcharges.

(1) A current owner shall be responsible for all overcharge penalties, including penalties based upon overcharges collected by any prior owner. However, in the absence of collusion or any relationship between such owner and any prior owner, where no records sufficient to establish the legal regulated rent were provided at a judicial sale, or such other sale effected in connection with, or to resolve, in whole or in part, a bankruptcy proceeding, mortgage foreclosure action or other judicial proceeding, an owner who purchases upon such sale or subsequent to such sale shall not be liable for overcharges collected by any owner prior to such sale, and treble damages upon overcharges that he or she collects which result from overcharges collected by any owner prior to such sale. An owner who did not purchase at such sale, but who purchased subsequent to such sale, shall also not be liable for overcharges collected by any prior owner subsequent to such sale to the extent that such overcharges are the result of overcharges collected prior to such sale.

(2) Court-appointed receivers. A receiver who is appointed by a court of competent jurisdiction to receive rent for the use or occupation of a housing accommodation shall not, in the absence of collusion or any relationship between such receiver and any owner or other receiver, be liable for overcharges collected by any owner or other receiver, and treble damages upon overcharges that he or she collects which result from overcharges collected by any owner or other receiver, where records sufficient to establish the legal regulated rent have not been made available to such receiver. Penalties pursuant to this subdivision shall be subject to the time limitations set forth in paragraph (a)(2) of this section.

(g)

(1) Where the rent charged on the base date cannot be determined, a full rental history from the base date is not provided, or the base date rent is the product of a fraudulent scheme to deregulate the apartment or a rental practice proscribed under section 2505.3(c) of this Title has been committed, the rent shall be established at the lowest of the following amounts:

(i) the lowest rent registered pursuant to section 2509.2 of this Title for a comparable apartment in the building in effect on the date the complaining tenant first occupied the apartment; or

(ii) the complaining tenant's initial rent reduced by the percentage adjustment authorized by section 2502.7 of this Title; or

(iii) the last registered rent paid by the prior tenant if within the four-year period of review; or

(iv) if the documentation set forth in subparagraphs (i) through (iii) of this paragraph is not available or is inappropriate, data compiled by the division, using sampling methods determined by the division, for regulated housing accommodations.

(2) However, in the absence of collusion or any relationship between an owner and any prior owner, where such owner purchases the housing accommodations upon a judicial sale, or such other sale effected in connection with, or to resolve, in whole or in part, a bankruptcy proceeding, mortgage foreclosure action or other judicial proceeding, and no records sufficient to establish the legal regulated rent were made available to such purchaser, such orders shall establish the legal regulated rent on the date of the inception of the complaining tenant's tenancy, or the date four years prior to the date of the filing of an overcharge complaint pursuant to this section, whichever is most recent, based on either:

(i) documented rents for comparable housing accommodations, whether or not subject to regulation pursuant to this Subchapter, submitted by the owner, subject to rebuttal by the tenant; or

(ii) if the documentation set forth in subparagraph (i) of this paragraph is not available or is inappropriate, data compiled by the division, using sampling methods determined by the division, for regulated housing accommodations; or

(iii) in the event that the information described in both subparagraphs (i) and (ii) of this paragraph is not available, the complaining tenant's rent reduced by the most recent guidelines adjustment.

(h) 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 5004 of the Civil Practice Law and Rules, plus the statutory costs and allowable disbursements in connection with the proceeding. Such action must be commenced or counterclaim interposed within four years of the date of the alleged overcharge, but no recovery of three times the amount of the overcharge may be awarded with respect to any overcharge which had occurred more than two years before the action is commenced or counterclaim is interposed.

(i) Nothing herein shall be in derogation of administrative proceedings or litigation commenced prior to April 1, 1984 or other rights which may accrue to affected or aggrieved parties due to such administrative proceedings or litigation.

(j) The procedures and rules set forth in this subdivision shall apply only to proceedings initiated prior to June 14, 2019, except as set forth in section 2506.8 of this Part.

N.Y. Comp. Codes R. & Regs. Tit. 9 § 2506.1

Amended New York State Register November 8, 2023/Volume XLV, Issue 45, eff. 11/8/2023