No Triple Damages for Overcharge Based on Missing Registration

Facts: Tenant complained of a rent overcharge in 1990. The DHCR asked landlord for rent history records dating back to 1985. Landlord submitted rent history data back to 1980, including leases and proof of $19,000 spent on apartment improvements made before tenant moved in. The DHCR notified landlord that no rent registration statement was filed for tenant's apartment in 1985. In response, landlord notified DHCR that tenant was moving out and withdrawing his complaint. The DHCR again asked for the 1985 registration and warned landlord of the consequences of not filing it. Landlord answered and explained that it was confused as to how to file the registration, since the apartment was vacant in April 1985. All other apartments in the building were registered that year. Tenant also claimed that he hadn't withdrawn his complaint. The DHCR sent landlord a final notice that triple damages would be imposed. Landlord asked the DHCR for instructions on how to file the late 1985 registration statement. The DHCR didn't respond but issued an order in 1992 freezing the rent at $280, granted some rent increase for apartment improvements, and imposed triple damages. The total overcharge was $88,000. Landlord appealed. The DHCR denied landlord's PAR. Landlord appealed and lost. Landlord appealed again. Court: Landlord wins. Provisions of the 1993 Rent Regulation Reform Act, which eliminated triple damages based solely on failure to register an apartment, didn't apply to landlord's case, since the complaint was filed before July 1, 1991. However, the DHCR issued an internal memorandum in April 1996 eliminating triple damages in such cases filed before July 1, 1991. The DHCR never revealed this to the lower court, even though the memo was issued before landlord's appeal was presented. In addition, the facts showed that there was no actual willful rent overcharge and no pattern of failing to register.

Sendowski v. DHCR: NYLJ, p. 25, col. 3 (12/20/96) (App. Div. 1 Dept.; Ellerin, JP, Wallach, Kupferman, Nardelli, Tom, JJ)