STATE OF NEW YORK
________________________________________________________________________
5251
2019-2020 Regular Sessions
IN ASSEMBLY
February 8, 2019
___________
Introduced by M. of A. DINOWITZ -- read once and referred to the Commit-
tee on Housing
AN ACT to amend the administrative code of the city of New York and the
emergency tenant protection act of nineteen seventy-four, in relation
to investigation of rent overcharge complaints
The People of the State of New York, represented in Senate and Assem-
bly, do enact as follows:
1 Section 1. Paragraph 1 of subdivision a of section 12 of section 4 of
2 chapter 576 of the laws of 1974, constituting the emergency tenant
3 protection act of nineteen seventy-four, as amended by chapter 403 of
4 the laws of 1983, the opening paragraph and clause (i) of subparagraph
5 (b) as amended by chapter 116 of the laws of 1997, is amended to read as
6 follows:
7 (1) Subject to the conditions and limitations of this paragraph, any
8 owner of housing accommodations in a city having a population of less
9 than one million or a town or village as to which an emergency has been
10 declared pursuant to section three, who, upon complaint of a tenant or
11 of the state division of housing and community renewal, is found by the
12 state division of housing and community renewal, after a reasonable
13 opportunity to be heard, to have collected an overcharge above the rent
14 authorized for a housing accommodation subject to this act shall be
15 liable to the tenant for a penalty equal to three times the amount of
16 such overcharge. In no event shall such treble damage penalty be
17 assessed against an owner based solely on said owner's failure to file a
18 proper or timely initial or annual rent registration statement. If the
19 owner establishes by a preponderance of the evidence that the overcharge
20 was neither willful nor attributable to his negligence, the state divi-
21 sion of housing and community renewal shall establish the penalty as the
22 amount of the overcharge plus interest at the rate of interest payable
23 on a judgment pursuant to section five thousand four of the civil prac-
24 tice law and rules. (i) Except as to complaints filed pursuant to clause
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD06209-01-9
A. 5251 2
1 (ii) of this paragraph, the legal regulated rent for purposes of deter-
2 mining an overcharge, shall be deemed to be the rent indicated in [the]
3 prior annual registration [statement filed four years prior to the most
4 recent registration statement, (or, if more recently filed, the initial
5 registration statement)] statements plus in each case any subsequent
6 lawful increases and adjustments, less any appropriate penalties. [Where
7 the amount of rent set forth in the annual rent registration statement
8 filed four years prior to the most recent registration statement is not
9 challenged within four years of its filing, neither such rent nor
10 service of any registration shall be subject to challenge at any time
11 thereafter.] The division of housing and community renewal, in investi-
12 gating complaints of overcharge and in determining legal regulated rent,
13 shall consider all available rent history which is reasonably necessary
14 to make such determinations. (ii) As to complaints filed within ninety
15 days of the initial registration of a housing accommodation, the legal
16 regulated rent for purposes of determining an overcharge shall be deemed
17 to be the rent charged [on the date four years prior to] as of the date
18 of the initial registration of the housing accommodation (or, if the
19 housing accommodation was not previously subject to this act [for less
20 than four years], the initial legal regulated rent) plus in each case,
21 any lawful increases and adjustments, less any appropriate penalties.
22 Where the rent charged [on the date four years] prior to the date of the
23 initial registration of the accommodation cannot be established, such
24 rent shall be established by the division. [Where the amount of rent set
25 forth in the annual rent registration statement filed four years prior
26 to the most recent registration statement is not challenged within four
27 years of its filing, neither such rent nor service of any registration
28 shall be subject to challenge at any time thereafter.]
29 (a) The order of the state division of housing and community renewal
30 shall apportion the owner's liability between or among two or more
31 tenants found to have been overcharged by such owner during their
32 particular tenancy of a unit.
33 (b) (i) Except as provided under clauses (ii) and (iii) of this
34 subparagraph, a complaint under this subdivision [shall] may be filed
35 with the state division of housing and community renewal [within four
36 years of the first overcharge alleged and no determination of an over-
37 charge and no award or calculation of an award of the amount of an over-
38 charge may be based upon an overcharge having occurred more than four
39 years before the complaint is filed. This paragraph shall preclude exam-
40 ination of the rental history of the housing accommodation prior to the
41 four-year period preceding the filing of a complaint pursuant to this
42 subdivision] at any time.
43 (ii) [No] A penalty of three times the overcharge may be based upon an
44 overcharge having occurred [more than two years] at any time before the
45 complaint is filed [or upon an overcharge which occurred prior to April
46 first, nineteen hundred eighty-four.
47 (iii) Any complaint based upon overcharges occurring prior to the date
48 of filing of the initial rent registration as provided in subdivision b
49 of section twelve-a of this act shall be filed within ninety days of the
50 mailing of notice to the tenant of such registration].
51 (c) Any affected tenant shall be notified of and given an opportunity
52 to join in any complaint filed by an officer or employee of the state
53 division of housing and community renewal.
54 (d) An owner found to have overcharged shall, in all cases, be
55 assessed the reasonable costs and attorney's fees of the proceeding, and
56 interest from the date of the overcharge at the rate of interest payable
A. 5251 3
1 on a judgment pursuant to section five thousand four of the civil prac-
2 tice law and rules.
3 (e) The order of the state division of housing and community renewal
4 awarding penalties may, upon the expiration of the period in which the
5 owner may institute a proceeding pursuant to article seventy-eight of
6 the civil practice law and rules, be filed and enforced by a tenant in
7 the same manner as a judgment or, in the alternative, not in excess of
8 twenty percent thereof per month may be offset against any rent there-
9 after due the owner.
10 (f) Unless a tenant shall have filed a complaint of overcharge with
11 the division which complaint has not been withdrawn, nothing contained
12 in this section shall be deemed to prevent a tenant or tenants, claiming
13 to have been overcharged, from commencing an action or interposing a
14 counterclaim in a court of competent jurisdiction for damages equal to
15 the overcharge and the penalty provided for in this section, including
16 interest from the date of the overcharge at the rate of interest payable
17 on a judgment pursuant to section five thousand four of the civil prac-
18 tice law and rules, plus the statutory costs and allowable disbursements
19 in connection with the proceeding. [Such action must be commenced or
20 counterclaim interposed within four years of the date of the alleged
21 overcharge but no recovery of three times the amount of the overcharge
22 may be awarded with respect to any overcharge which had occurred more
23 than two years before the action is commenced or counterclaim is inter-
24 posed.]
25 § 2. Subdivision a of section 26-516 of the administrative code of the
26 city of New York, as amended by chapter 116 of the laws of 1997, is
27 amended to read as follows:
28 a. Subject to the conditions and limitations of this subdivision, any
29 owner of housing accommodations who, upon complaint of a tenant, or of
30 the state division of housing and community renewal, is found by the
31 state division of housing and community renewal, after a reasonable
32 opportunity to be heard, to have collected an overcharge above the rent
33 authorized for a housing accommodation subject to this chapter shall be
34 liable to the tenant for a penalty equal to three times the amount of
35 such overcharge. In no event shall such treble damage penalty be
36 assessed against an owner based solely on said owner's failure to file a
37 timely or proper initial or annual rent registration statement. If the
38 owner establishes by a preponderance of the evidence that the overcharge
39 was not willful, the state division of housing and community renewal
40 shall establish the penalty as the amount of the overcharge plus inter-
41 est. (i) Except as to complaints filed pursuant to clause (ii) of this
42 paragraph, the legal regulated rent for purposes of determining an over-
43 charge, shall be the amount of rent indicated in [the] prior annual
44 registration [statement filed four years prior to the most recent regis-
45 tration statement, (or, if more recently filed, the initial registration
46 statement)] statements plus in each case any subsequent lawful increases
47 and adjustments, less any appropriate penalties. [Where the amount of
48 rent set forth in the annual rent registration statement filed four
49 years prior to the most recent registration statement is not challenged
50 within four years of its filing, neither such rent nor service of any
51 registration shall be subject to challenge at any time thereafter.] The
52 division of housing and community renewal, in investigating complaints
53 of overcharge and in determining legal regulated rent, shall consider
54 all available rent history which is reasonably necessary to make such
55 determinations. (ii) As to complaints filed within ninety days of the
56 initial registration of a housing accommodation, the legal regulated
A. 5251 4
1 rent shall be deemed to be the rent charged [on the date four years
2 prior to] as of the date of the initial registration of the housing
3 accommodation (or, if the housing accommodation was not previously
4 subject to this chapter [for less than four years], the initial legal
5 regulated rent) plus in each case, any lawful increases and adjustments,
6 less any appropriate penalties. Where the rent charged [on the date four
7 years prior to] as of the date of the initial registration of the accom-
8 modation cannot be established, such rent shall be established by the
9 division.
10 Where the prior rent charged [on the date four years prior to the date
11 of initial registration of] for the housing accommodation cannot be
12 established, such rent shall be established by the division provided
13 that where a rent is established based on rentals determined under the
14 provisions of the local emergency housing rent control act such rent
15 must be adjusted to account for no less than the minimum increases which
16 would be permitted if the housing accommodation were covered under the
17 provisions of this chapter, less any appropriate penalties. [Where the
18 amount of rent set forth in the annual rent registration statement filed
19 four years prior to the most recent registration statement is not chal-
20 lenged within four years of its filing, neither such rent nor service of
21 any registration shall be subject to challenge at any time thereafter.]
22 (1) The order of the state division of housing and community renewal
23 shall apportion the owner's liability between or among two or more
24 tenants found to have been overcharged by such owner during their
25 particular tenancy of a unit.
26 (2) Except as provided under clauses (i) and (ii) of this paragraph, a
27 complaint under this subdivision [shall] may be filed with the state
28 division of housing and community renewal [within four years of the
29 first overcharge alleged and no determination of an overcharge and no
30 award or calculation of an award of the amount of an overcharge may be
31 based upon an overcharge having occurred more than four years before the
32 complaint is filed] at any time. (i) [No] A penalty of three times the
33 overcharge may be based upon an overcharge having occurred [more than
34 two years] at any time before the complaint is filed [or upon an over-
35 charge which occurred prior to April first, nineteen hundred eighty-
36 four. (ii) Any complaint based upon overcharges occurring prior to the
37 date of filing of the initial rent registration as provided in section
38 26-517 of this chapter shall be filed within ninety days of the mailing
39 of notice to the tenant of such registration. This paragraph shall
40 preclude examination of the rental history of the housing accommodation
41 prior to the four-year period preceding the filing of a complaint pursu-
42 ant to this subdivision].
43 (3) Any affected tenant shall be notified of and given an opportunity
44 to join in any complaint filed by an officer or employee of the state
45 division of housing and community renewal.
46 (4) An owner found to have overcharged may be assessed the reasonable
47 costs and attorney's fees of the proceeding and interest from the date
48 of the overcharge at the rate of interest payable on a judgment pursuant
49 to section five thousand four of the civil practice law and rules.
50 (5) The order of the state division of housing and community renewal
51 awarding penalties may, upon the expiration of the period in which the
52 owner may institute a proceeding pursuant to article seventy-eight of
53 the civil practice law and rules, be filed and enforced by a tenant in
54 the same manner as a judgment or not in excess of twenty percent thereof
55 per month may be offset against any rent thereafter due the owner.
56 § 3. This act shall take effect immediately; provided that:
A. 5251 5
1 a. the amendments to paragraph 1 of subdivision a of section 12 of the
2 emergency tenant protection act of nineteen seventy-four made by section
3 one of this act shall expire on the same date as such act expires and
4 shall not affect the expiration of such act as provided in section 17 of
5 chapter 567 of the laws of 1974; and
6 b. the amendments to section 26-516 of chapter 4 of title 26 of the
7 administrative code of the city of New York made by section two of this
8 act shall expire on the same date as such law expires and shall not
9 affect the expiration of such law as provided under section 26-520 of
10 such law.