§ 12 — Enforcement and procedures

New York § 12

• Jurisdiction: New York
• Law ETP: Emergency Tenant Protection Act 576/74

Text

§ 12. Enforcement and procedures. a. (1) Subject to the conditions and\nlimitations of this paragraph, any owner of housing accommodations in a\ncity having a population of less than one million or a town or village\nas to which an emergency has been declared pursuant to section three,\nwho, upon complaint of a tenant or of the state division of housing and\ncommunity renewal, is found by the state division of housing and\ncommunity renewal, after a reasonable opportunity to be heard, to have\ncollected an overcharge above the rent authorized for a housing\naccommodation subject to this act shall be liable to the tenant for a\npenalty equal to three times the amount of such overcharge. If the owner\nestablishes by a preponderance of the evidence that the overcharge was\nneither willful nor attributable to his negligence, the state division\nof housing and community renewal shall establish the penalty as the\namount of the overcharge plus interest at the rate of interest payable\non a judgment pursuant to section five thousand four of the civil\npractice law and rules. After a complaint of rent overcharge has been\nfiled and served on an owner, the voluntary adjustment of the rent\nand/or the voluntary tender of a refund of rent overcharges shall not be\nconsidered by the division of housing and community renewal or a court\nof competent jurisdiction as evidence that the overcharge was not\nwillful. (i) Except as to complaints filed pursuant to clause (ii) of\nthis paragraph, the legal regulated rent for purposes of determining an\novercharge, shall be deemed to be the rent indicated in the most recent\nreliable annual registration statement for a rent stabilized tenant\nfiled and served upon the tenant six or more years prior to the most\nrecent registration statement, (or, if more recently filed, the initial\nregistration statement) plus in each case any subsequent lawful\nincreases and adjustments. The division of housing and community renewal\nor a court of competent jurisdiction, in investigating complaints of\novercharge and in determining legal regulated rent, shall consider all\navailable rent history which is reasonably necessary to make such\ndeterminations. (ii) As to complaints filed within ninety days of the\ninitial registration of a housing accommodation, the legal regulated\nrent for purposes of determining an overcharge shall be deemed to be the\nrent charged on the date six years prior to the date of the initial\nregistration of the housing accommodation (or, if the housing\naccommodation was subject to this act for less than six years, the\ninitial legal regulated rent) plus in each case, any lawful increases\nand adjustments. Where the rent charged on the date six years prior to\nthe date of the initial registration of the accommodation cannot be\nestablished, such rent shall be established by the division.\n (a) The order of the state division of housing and community renewal\nshall apportion the owner's liability between or among two or more\ntenants found to have been overcharged by such owner during their\nparticular tenancy of a unit.\n (b) (i) Except as provided under clauses (ii) and (iii) of this\nsubparagraph, a complaint under this subdivision may be filed with the\nstate division of housing and community renewal or in a court of\ncompetent jurisdiction at any time, however any recovery of overcharge\npenalties shall be limited to the six years preceding the complaint.\n (ii) A penalty of three times the overcharge shall be assessed upon\nall overcharges willfully collected by the owner starting six years\nbefore the complaint is filed.\n (iii) Any complaint based upon overcharges occurring prior to the date\nof filing of the initial rent registration as provided in subdivision b\nof section twelve-a of this act shall be filed within ninety days of the\nmailing of notice to the tenant of such registration.\n (c) Any affected tenant shall be notified of and given an opportunity\nto join in any complaint filed by an officer or employee of the state\ndivision of housing and community renewal.\n (d) An owner found to have overcharged shall, in all cases, be\nassessed the reasonable costs and attorney's fees of the proceeding, and\ninterest from the date of the overcharge at the rate of interest payable\non a judgment pursuant to section five thousand four of the civil\npractice law and rules.\n (e) The order of the state division of housing and community renewal\nawarding penalties may, upon the expiration of the period in which the\nowner may institute a proceeding pursuant to article seventy-eight of\nthe civil practice law and rules, be filed and enforced by a tenant in\nthe same manner as a judgment or, in the alternative, not in excess of\ntwenty percent thereof per month may be offset against any rent\nthereafter due the owner.\n (f) Unless a tenant shall have filed a complaint of overcharge with\nthe division which complaint has not been withdrawn, nothing contained\nin this section shall be deemed to prevent a tenant or tenants, claiming\nto have been overcharged, from commencing an action or interposing a\ncounterclaim in a court of competent jurisdiction for damages equal to\nthe overcharge and the penalty provided for in this section, including\ninterest from the date of the overcharge at the rate of interest payable\non a judgment pursuant to section five thousand four of the civil\npractice law and rules, plus the statutory costs and allowable\ndisbursements in connection with the proceeding. The courts and the\ndivision shall have concurrent jurisdiction, subject to the tenant's\nchoice of forum.\n (2) In addition to issuing the specific orders provided for by other\nprovisions of this act, the state division of housing and community\nrenewal shall be empowered to enforce this act and its regulations by\nissuing, upon notice and a reasonable opportunity for the affected party\nto be heard, such other orders as it may deem appropriate.\n (3) If the owner is found by the commissioner:\n (i) to have violated an order of the division the commissioner may\nimpose by administrative order after hearing, a civil penalty at minimum\nin the amount of one thousand but not to exceed two thousand dollars for\nthe first such offense, and at minimum in the amount of two thousand but\nnot to exceed three thousand dollars for each subsequent offense; or\n (ii) to have harassed a tenant to obtain vacancy of his housing\naccommodation, the commissioner may impose by administrative order after\nhearing, a civil penalty for any such violation. Such penalty shall be\nat minimum in the amount of two thousand but not to exceed three\nthousand dollars for the first such offense, and at minimum in the\namount of ten thousand but not to exceed eleven thousand dollars for\neach subsequent offense or for a violation consisting of conduct\ndirected at the tenants of more than one housing accommodation.\n Such order shall be deemed a final determination for the purposes of\njudicial review. Such penalty may, upon the expiration of the period for\nseeking review pursuant to article seventy-eight of the civil practice\nlaw and rules, be docketed and enforced in the manner of a judgment of\nthe supreme court.\n (4) Any proceeding pursuant to article seventy-eight of the civil\npractice law and rules seeking review of any action pursuant to this act\nshall be brought within sixty days of the expiration of the ninety day\nperiod and any extension thereof provided in subdivision c of this\nsection or the rendering of a determination, whichever is later. Any\naction or proceeding brought by or against the commissioner under this\nact shall be brought in the county in which the housing accommodation is\nlocated.\n (5) Violations of this act or of the regulations and orders issued\npursuant thereto may be enjoined by the supreme court upon proceedings\ncommenced by the state division of housing and community renewal or the\ntenant or tenants who allege they have been overcharged. The division\nshall not be required to post bond.\n (6) In furtherance of its responsibility to enforce this act, the\nstate division of housing and community renewal shall be empowered to\nadminister oaths, issue subpoenas, conduct investigations, make\ninspections and designate officers to hear and report. The division\nshall safeguard the confidentiality of information furnished to it at\nthe request of the person furnishing same, unless such information must\nbe made public in the interest of establishing a record for the future\nguidance of persons subject to this act.\n (7) In any action or proceeding before a court wherein a party relies\nfor a ground of relief or defense or raises issue or brings into\nquestion the construction or validity of this act or any regulation,\norder or requirement hereunder, the court having jurisdiction of such\naction or proceeding may at any stage certify such fact to the state\ndivision of housing and community renewal. The state division of housing\nand community renewal may intervene in any such action or proceeding.\n (8) Except where a specific provision of this law requires the\nmaintenance of rent records for a longer period, including records of\nthe useful life of improvements made to any housing accommodation or any\nbuilding, any owner who has duly registered a housing accommodation\npursuant to section twelve-a of this act shall not be required to\nmaintain or produce any records relating to rentals of such\naccommodation more than six years prior to the most recent registration\nor annual statement for such accommodation. However, an owner's election\nnot to maintain records shall not limit the authority of the division of\nhousing and community renewal and the courts to examine the rental\nhistory and determine legal regulated rents pursuant to this\nsubdivision.\n (9) The division of housing and community renewal and the courts, in\ninvestigating complaints of overcharge and in determining legal\nregulated rents, shall consider all available rent history which is\nreasonably necessary to make such determinations, including but not\nlimited to (a) any rent registration or other records filed with the\nstate division of housing and community renewal, or any other state,\nmunicipal or federal agency, regardless of the date to which the\ninformation on such registration refers; (b) any order issued by any\nstate, municipal or federal agency; (c) any records maintained by the\nowner or tenants; and (d) any public record kept in the regular course\nof business by any state, municipal or federal agency. Nothing contained\nin this paragraph shall limit the examination of rent history relevant\nto a determination as to:\n (i) whether the legality of a rental amount charged or registered is\nreliable in light of all available evidence including, but not limited\nto, whether an unexplained increase in the registered or lease rents, or\na fraudulent scheme to destabilize the housing accommodation, rendered\nsuch rent or registration unreliable;\n (ii) whether an accommodation is subject to the emergency tenant\nprotection act;\n (iii) whether an order issued by the division of housing and community\nrenewal or a court of competent jurisdiction, including, but not limited\nto an order issued pursuant to section seven of this act, or any\nregulatory agreement or other contract with any governmental agency, and\nremaining in effect within six years of the filing of a complaint\npursuant to this section, affects or limits the amount of rent that may\nbe charged or collected;\n (iv) whether an overcharge was or was not willful;\n (v) whether a rent adjustment that requires information regarding the\nlength of occupancy by a present or prior tenant was lawful;\n (vi) the existence or terms and conditions of a preferential rent, or\nthe propriety of a legal registered rent during a period when the\ntenants were charged a preferential rent;\n (vii) the legality of a rent charged or registered immediately prior\nto the registration of a preferential rent; or\n (viii) the amount of the legal regulated rent where the apartment was\nvacant or temporarily exempt on the date six years prior to a tenant's\ncomplaint.\n b. Within a city having a population of one million or more, the state\ndivision of housing and community renewal shall have such powers to\nenforce this act as shall be provided in the New York city rent\nstabilization law of nineteen hundred sixty-nine, as amended, or as\nshall otherwise be provided by law. Unless a tenant shall have filed a\ncomplaint of overcharge with the division which complaint has not been\nwithdrawn, nothing contained in this section shall be deemed to prevent\na tenant or tenants, claiming to have been overcharged, from commencing\nan action or interposing a counterclaim in a court of competent\njurisdiction for damages equal to the overcharge and the penalty\nprovided for in this section, including interest from the date of the\novercharge at the rate of interest payable on a judgment pursuant to\nsection five thousand four of the civil practice law and rules, plus the\nstatutory costs and allowable disbursements in connection with the\nproceeding. The courts and the division shall have concurrent\njurisdiction, subject to the tenant's choice of forum.\n c. The state division of housing and community renewal may, by\nregulation, provide for administrative review of all orders and\ndeterminations issued by it pursuant to this act. Any such regulation\nshall provide that if a petition for such review is not determined\nwithin ninety days after it is filed, it shall be deemed to be denied.\nHowever, the division may grant one extension not to exceed thirty days\nwith the consent of the party filing such petition; any further\nextension may only be granted with the consent of all parties to the\npetition. No proceeding may be brought pursuant to article seventy-eight\nof the civil practice law and rules to challange any order or\ndetermination which is subject to such administrative review unless such\nreview has been sought and either (1) a determination thereon has been\nmade or (2) the ninety-day period provided for determination of the\npetition for review (or any extension thereof) has expired.\n