A05251 Summary:
| BILL NO | A05251A |
| SAME AS | SAME AS S04169-A |
| SPONSOR | Dinowitz |
| COSPNSR | Reyes, Taylor, Colton, Jaffee, Gottfried, Epstein, Simon, D'Urso, Arroyo, Blake, De La Rosa, Niou, Glick, Cruz, Barnwell, Miller MG, Hunter, Mosley, Pichardo, Davila, Richardson, Rosenthal L, Fernandez, Frontus, Bichotte, Carroll, Ortiz, Barron, Williams, Perry, Seawright, Joyner, Crespo, Kim, Rivera, Fall, Hevesi, Aubry, Simotas, Darling, Titus, Quart, Rosenthal D, Jacobson, Weprin |
| MLTSPNSR | Cook, DenDekker, Lentol, Nolan |
| Amd §12, Emerg Ten Prot Act of 1974; amd §26-516, NYC Ad Cd; amd §213-a, CPLR | |
| Permits the division of housing and community renewal to investigate rent overcharge complaints in rent regulated housing accommodations by reviewing all rent history beyond four years' prior records as needed. | |
A05251 Text:
Go to topSTATE OF NEW YORK ________________________________________________________________________ 5251--A 2019-2020 Regular Sessions IN ASSEMBLY February 8, 2019 ___________ Introduced by M. of A. DINOWITZ, REYES, TAYLOR, COLTON, JAFFEE, GOTT- FRIED, EPSTEIN, SIMON, D'URSO, ARROYO, BLAKE, DE LA ROSA, NIOU, GLICK, CRUZ, BARNWELL, M. G. MILLER, HUNTER, MOSLEY, PICHARDO, DAVILA, RICH- ARDSON, L. ROSENTHAL, FERNANDEZ, FRONTUS, BICHOTTE, CARROLL, ORTIZ, BARRON, WILLIAMS, PERRY, SEAWRIGHT -- Multi-Sponsored by -- M. of A. COOK, NOLAN -- read once and referred to the Committee on Housing -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee AN ACT to amend the administrative code of the city of New York, the emergency tenant protection act of nineteen seventy-four and the civil practice law and rules, in relation to investigation of rent over- charge 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 be17assessed against an owner based solely on said owner's failure to file aEXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD06209-08-9A. 5251--A 2 1proper or timely initial or annual rent registration statement.] If the 2 owner establishes by a preponderance of the evidence that the overcharge 3 was neither willful nor attributable to his negligence, the state divi- 4 sion of housing and community renewal shall establish the penalty as the 5 amount of the overcharge plus interest at the rate of interest payable 6 on a judgment pursuant to section five thousand four of the civil prac- 7 tice law and rules. After a complaint of rent overcharge has been filed 8 and served on an owner, the voluntary adjustment of the rent and/or the 9 voluntary tender of a refund of rent overcharges shall not be considered 10 by the division of housing and community renewal or a court of competent 11 jurisdiction as evidence that the overcharge was not willful. (i) Except 12 as to complaints filed pursuant to clause (ii) of this paragraph, the 13 legal regulated rent for purposes of determining an overcharge, shall be 14 deemed to be the rent indicated in the most recent reliable annual 15 registration statement for a rent stabilized tenant filed [four] and 16 served upon the tenant six or more years prior to the most recent regis- 17 tration statement, (or, if more recently filed, the initial registration 18 statement) plus in each case any subsequent lawful increases and adjust- 19 ments. [Where the amount of rent set forth in the annual rent registra-20tion statement filed four years prior to the most recent registration21statement is not challenged within four years of its filing, neither22such rent nor service of any registration shall be subject to challenge23at any time thereafter.] The division of housing and community renewal 24 or a court of competent jurisdiction, in investigating complaints of 25 overcharge and in determining legal regulated rent, shall consider all 26 available rent history which is reasonably necessary to make such deter- 27 minations. (ii) As to complaints filed within ninety days of the initial 28 registration of a housing accommodation, the legal regulated rent for 29 purposes of determining an overcharge shall be deemed to be the rent 30 charged on the date [four] six years prior to the date of the initial 31 registration of the housing accommodation (or, if the housing accommo- 32 dation was subject to this act for less than [four] six years, the 33 initial legal regulated rent) plus in each case, any lawful increases 34 and adjustments. Where the rent charged on the date [four] six years 35 prior to the date of the initial registration of the accommodation 36 cannot be established, such rent shall be established by the division. 37 [Where the amount of rent set forth in the annual rent registration38statement filed four years prior to the most recent registration state-39ment is not challenged within four years of its filing, neither such40rent nor service of any registration shall be subject to challenge at41any time thereafter.] 42 (a) The order of the state division of housing and community renewal 43 shall apportion the owner's liability between or among two or more 44 tenants found to have been overcharged by such owner during their 45 particular tenancy of a unit. 46 (b) (i) Except as provided under clauses (ii) and (iii) of this 47 subparagraph, a complaint under this subdivision [shall] may be filed 48 with the state division of housing and community renewal [within four49years of the first overcharge alleged and no determination of an over-50charge and no award or calculation of an award of the amount of an over-51charge may be based upon an overcharge having occurred more than four52years before the complaint is filed. This paragraph shall preclude exam-53ination of the rental history of the housing accommodation prior to the54four-year period preceding the filing of a complaint pursuant to this55subdivision] in a court of competent jurisdiction at any time, howeverA. 5251--A 3 1 any recovery of overcharge penalties shall be limited to the six years 2 preceding the complaint. 3 (ii) [No] A penalty of three times the overcharge [may be based upon4an overcharge having occurred more than two years before the complaint5is filed or upon an overcharge which occurred prior to April first,6nineteen hundred eighty-four]shall be assessed upon all overcharges 7 willfully collected by the owner starting six years before the complaint 8 is filed. 9 (iii) Any complaint based upon overcharges occurring prior to the date 10 of filing of the initial rent registration as provided in subdivision b 11 of section twelve-a of this act shall be filed within ninety days of the 12 mailing of notice to the tenant of such registration. 13 (c) Any affected tenant shall be notified of and given an opportunity 14 to join in any complaint filed by an officer or employee of the state 15 division of housing and community renewal. 16 (d) An owner found to have overcharged shall, in all cases, be 17 assessed the reasonable costs and attorney's fees of the proceeding, and 18 interest from the date of the overcharge at the rate of interest payable 19 on a judgment pursuant to section five thousand four of the civil prac- 20 tice law and rules. 21 (e) The order of the state division of housing and community renewal 22 awarding penalties may, upon the expiration of the period in which the 23 owner may institute a proceeding pursuant to article seventy-eight of 24 the civil practice law and rules, be filed and enforced by a tenant in 25 the same manner as a judgment or, in the alternative, not in excess of 26 twenty percent thereof per month may be offset against any rent there- 27 after due the owner. 28 (f) Unless a tenant shall have filed a complaint of overcharge with 29 the division which complaint has not been withdrawn, nothing contained 30 in this section shall be deemed to prevent a tenant or tenants, claiming 31 to have been overcharged, from commencing an action or interposing a 32 counterclaim in a court of competent jurisdiction for damages equal to 33 the overcharge and the penalty provided for in this section, including 34 interest from the date of the overcharge at the rate of interest payable 35 on a judgment pursuant to section five thousand four of the civil prac- 36 tice law and rules, plus the statutory costs and allowable disbursements 37 in connection with the proceeding. [Such action must be commenced or38counterclaim interposed within four years of the date of the alleged39overcharge but no recovery of three times the amount of the overcharge40may be awarded with respect to any overcharge which had occurred more41than two years before the action is commenced or counterclaim is inter-42posed.] The courts and the division shall have concurrent jurisdiction, 43 subject to the tenant's choice of forum. 44 § 2. Paragraph 8 of subdivision a of section 12 of section 4 of chap- 45 ter 576 of the laws of 1974, constituting the emergency tenant 46 protection act of nineteen seventy-four, as amended by chapter 403 of 47 the laws of 1983, is amended and a new paragraph 9 is added to read as 48 follows: 49 (8) [Any] Except where a specific provision of this law requires the 50 maintenance of rent records for a longer period, including records of 51 the useful life of improvements made to any housing accommodation or any 52 building, any owner who has duly registered a housing accommodation 53 pursuant to section twelve-a of this act shall not be required to main- 54 tain or produce any records relating to rentals of such accommodation 55 more than four years prior to the most recent registration or annual 56 statement for such accommodation. However, an owner's election not toA. 5251--A 4 1 maintain records shall not limit the authority of the division of hous- 2 ing and community renewal and the courts to examine the rental history 3 and determine legal regulated rents pursuant to this subdivision. 4 (9) The division of housing and community renewal and the courts, in 5 investigating complaints of overcharge and in determining legal regu- 6 lated rents, shall consider all available rent history which is reason- 7 ably necessary to make such determinations, including but not limited to 8 (a) any rent registration or other records filed with the state division 9 of housing and community renewal, or any other state, municipal or 10 federal agency, regardless of the date to which the information on such 11 registration refers; (b) any order issued by any state, municipal or 12 federal agency; (c) any records maintained by the owner or tenants; and 13 (d) any public record kept in the regular course of business by any 14 state, municipal or federal agency. Nothing contained in this paragraph 15 shall limit the examination of rent history relevant to a determination 16 as to: 17 (i) whether the legality of a rental amount charged or registered is 18 reliable in light of all available evidence including, but not limited 19 to, whether an unexplained increase in the registered or lease rents, or 20 a fraudulent scheme to destabilize the housing accommodation, rendered 21 such rent or registration unreliable; 22 (ii) whether an accommodation is subject to the emergency tenant 23 protection act; 24 (iii) whether an order issued by the division of housing and community 25 renewal or a court of competent jurisdiction, including, but not limited 26 to an order issued pursuant to section 26-514 of the administrative code 27 of the city of New York, or any regulatory agreement or other contract 28 with any governmental agency, and remaining in effect within six years 29 of the filing of a complaint pursuant to this section, affects or limits 30 the amount of rent that may be charged or collected; 31 (iv) whether an overcharge was or was not willful; 32 (v) whether a rent adjustment that requires information regarding the 33 length of occupancy by a present or prior tenant was lawful; 34 (vi) the existence or terms and conditions of a preferential rent, or 35 the propriety of a legal registered rent during a period when the 36 tenants were charged a preferential rent; 37 (vii) the legality of a rent charged or registered immediately prior 38 to the registration of a preferential rent; or 39 (viii) the amount of the legal regulated rent where the apartment was 40 vacant or temporarily exempt on the date six years prior to a tenant's 41 complaint. 42 § 3. Subdivision b of section 12 of section 4 of chapter 576 of the 43 laws of 1974, constituting the emergency tenant protection act of nine- 44 teen seventy-four, as amended by chapter 403 of the laws of 1983, is 45 amended to read as follows: 46 b. Within a city having a population of one million or more, the state 47 division of housing and community renewal shall have such powers to 48 enforce this act as shall be provided in the New York city rent stabili- 49 zation law of nineteen hundred sixty-nine, as amended, or as shall 50 otherwise be provided by law. Unless a tenant shall have filed a 51 complaint of overcharge with the division which complaint has not been 52 withdrawn, nothing contained in this section shall be deemed to prevent 53 a tenant or tenants, claiming to have been overcharged, from commencing 54 an action or interposing a counterclaim in a court of competent juris- 55 diction for damages equal to the overcharge and the penalty provided for 56 in this section, including interest from the date of the overcharge atA. 5251--A 5 1 the rate of interest payable on a judgment pursuant to section five 2 thousand four of the civil practice law and rules, plus the statutory 3 costs and allowable disbursements in connection with the proceeding. The 4 courts and the division shall have concurrent jurisdiction, subject to 5 the tenant's choice of forum. 6 § 4. Subdivision a of section 26-516 of the administrative code of the 7 city of New York, as amended by chapter 116 of the laws of 1997, is 8 amended to read as follows: 9 a. Subject to the conditions and limitations of this subdivision, any 10 owner of housing accommodations who, upon complaint of a tenant, or of 11 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 chapter 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 be17assessed against an owner based solely on said owner's failure to file a18timely or proper initial or annual rent registration statement.] If the 19 owner establishes by a preponderance of the evidence that the overcharge 20 was not willful, the state division of housing and community renewal 21 shall establish the penalty as the amount of the overcharge plus inter- 22 est. After a complaint of rent overcharge has been filed and served on 23 an owner, the voluntary adjustment of the rent and/or the voluntary 24 tender of a refund of rent overcharges shall not be considered by the 25 division of housing and community renewal or a court of competent juris- 26 diction as evidence that the overcharge was not willful. (i) Except as 27 to complaints filed pursuant to clause (ii) of this paragraph, the legal 28 regulated rent for purposes of determining an overcharge, shall be the 29 rent indicated in the most recent reliable annual registration statement 30 filed [four] and served upon the tenant six or more years prior to the 31 most recent registration statement, (or, if more recently filed, the 32 initial registration statement) plus in each case any subsequent lawful 33 increases and adjustments. [Where the amount of rent set forth in the34annual rent registration statement filed four years prior to the most35recent registration statement is not challenged within four years of its36filing, neither such rent nor service of any registration shall be37subject to challenge at any time thereafter.] The division of housing 38 and community renewal or a court of competent jurisdiction, in investi- 39 gating complaints of overcharge and in determining legal regulated rent, 40 shall consider all available rent history which is reasonably necessary 41 to make such determinations. (ii) As to complaints filed within ninety 42 days of the initial registration of a housing accommodation, the legal 43 regulated rent shall be deemed to be the rent charged on the date [four] 44 six years prior to the date of the initial registration of the housing 45 accommodation (or, if the housing accommodation was subject to this 46 chapter for less than [four] six years, the initial legal regulated 47 rent) plus in each case, any lawful increases and adjustments. Where the 48 rent charged on the date [four] six years prior to the date of the 49 initial registration of the accommodation cannot be established, such 50 rent shall be established by the division. 51 Where the prior rent charged [on the date four years prior to the date52of initial registration of] for the housing accommodation cannot be 53 established, such rent shall be established by the division provided 54 that where a rent is established based on rentals determined under the 55 provisions of the local emergency housing rent control act such rent 56 must be adjusted to account for no less than the minimum increases whichA. 5251--A 6 1 would be permitted if the housing accommodation were covered under the 2 provisions of this chapter, less any appropriate penalties. [Where the3amount of rent set forth in the annual rent registration statement filed4four years prior to the most recent registration statement is not chal-5lenged within four years of its filing, neither such rent nor service of6any registration shall be subject to challenge at any time thereafter.] 7 (1) The order of the state division of housing and community renewal 8 shall apportion the owner's liability between or among two or more 9 tenants found to have been overcharged by such owner during their 10 particular tenancy of a unit. 11 (2) Except as provided under clauses (i) and (ii) of this paragraph, a 12 complaint under this subdivision [shall] may be filed with the state 13 division of housing and community renewal [within four years of the14first overcharge alleged and no determination of an overcharge and no15award or calculation of an award of the amount of an overcharge may be16based upon an overcharge having occurred more than four years before the17complaint is filed] in a court of competent jurisdiction at any time, 18 however any recovery of overcharge penalties shall be limited to the six 19 years preceding the complaint . (i) [No] A penalty of three times the 20 overcharge [may be based upon an overcharge having occurred more than21two years] shall be assessed upon all overcharges willfully collected by 22 the owner starting six years before the complaint is filed [or upon an23overcharge which occurred prior to April first, nineteen hundred eight-24y-four. (ii) Any complaint based upon overcharges occurring prior to the25date of filing of the initial rent registration as provided in section2626-517 of this chapter shall be filed within ninety days of the mailing27of notice to the tenant of such registration. This paragraph shall28preclude examination of the rental history of the housing accommodation29prior to the four-year period preceding the filing of a complaint pursu-30ant to this subdivision]. 31 (3) Any affected tenant shall be notified of and given an opportunity 32 to join in any complaint filed by an officer or employee of the state 33 division of housing and community renewal. 34 (4) An owner found to have overcharged may be assessed the reasonable 35 costs and attorney's fees of the proceeding and interest from the date 36 of the overcharge at the rate of interest payable on a judgment pursuant 37 to section five thousand four of the civil practice law and rules. 38 (5) The order of the state division of housing and community renewal 39 awarding penalties may, upon the expiration of the period in which the 40 owner may institute a proceeding pursuant to article seventy-eight of 41 the civil practice law and rules, be filed and enforced by a tenant in 42 the same manner as a judgment or not in excess of twenty percent thereof 43 per month may be offset against any rent thereafter due the owner. 44 § 5. Subdivision g of section 26-516 of the administrative code of the 45 city of New York is amended, subdivision h is relettered subdivision i 46 and a new subdivision h is added to read as follows: 47 g. [Any] Except where a specific provision of this law requires the 48 maintenance of rent records for a longer period, including records of 49 the useful life of improvements made to any housing accommodation or any 50 building, any owner who has duly registered a housing accommodation 51 pursuant to section 26-517 of this chapter shall not be required to 52 maintain or produce any records relating to rentals of such accommo- 53 dation for more than [four] six years prior to the most recent registra- 54 tion or annual statement for such accommodation. However, an owner's 55 election not to maintain records shall not limit the authority of the 56 division of housing and community renewal and the courts to examine theA. 5251--A 7 1 rental history and determine legal regulated rents pursuant to this 2 section. 3 h. The division of housing and community renewal, and the courts, in 4 investigating complaints of overcharge and in determining legal regu- 5 lated rents, shall consider all available rent history which is reason- 6 ably necessary to make such determinations, including but not limited to 7 (i) any rent registration or other records filed with the state division 8 of housing and community renewal, or any other state, municipal or 9 federal agency, regardless of the date to which the information on such 10 registration refers; (ii) any order issued by any state, municipal or 11 federal agency; (iii) any records maintained by the owner or tenants; 12 and (iv) any public record kept in the regular course of business by any 13 state, municipal or federal agency. Nothing contained in this subdivi- 14 sion shall limit the examination of rent history relevant to a determi- 15 nation as to: 16 (i) whether the legality of a rental amount charged or registered is 17 reliable in light of all available evidence including but not limited to 18 whether an unexplained increase in the registered or lease rents, or a 19 fraudulent scheme to destabilize the housing accommodation, rendered 20 such rent or registration unreliable; 21 (ii) whether an accommodation is subject to the emergency tenant 22 protection act or the rent stabilization law; 23 (iii) whether an order issued by the division of housing and community 24 renewal or by a court, including, but not limited to an order issued 25 pursuant to section 26-514 of this chapter, or any regulatory agreement 26 or other contract with any governmental agency, and remaining in effect 27 within six years of the filing of a complaint pursuant to this section, 28 affects or limits the amount of rent that may be charged or collected; 29 (iv) whether an overcharge was or was not willful; 30 (v) whether a rent adjustment that requires information regarding the 31 length of occupancy by a present or prior tenant was lawful; 32 (vi) the existence or terms and conditions of a preferential rent, or 33 the propriety of a legal registered rent during a period when the 34 tenants were charged a preferential rent; 35 (vii) the legality of a rent charged or registered immediately prior 36 to the registration of a preferential rent; or 37 (viii) the amount of the legal regulated rent where the apartment was 38 vacant or temporarily exempt on the date six years prior to a tenant's 39 complaint. 40 § 6. Section 213-a of the civil practice law and rules, as amended by 41 chapter 116 of the laws of 1997, is amended to read as follows: 42 § 213-a. [Actions to be commenced within four years; residential] 43 Residential rent overcharge. [An action on a residential rent overcharge44shall be commenced within four years of the first overcharge alleged and45no determination of an overcharge and no award or calculation of an46award of the amount of any overcharge may be based upon an overcharge47having occurred more than four years before the action is commenced.48This section shall preclude examination of the rental history of the49housing accommodation prior to the four-year period immediately preced-50ing the commencement of the action.] No overcharge penalties or damages 51 may be awarded for a period more than six years before the action is 52 commenced or complaint is filed, however, an overcharge claim may be 53 filed at any time, and the calculation and determination of the legal 54 rent and the amount of the overcharge shall be made in accordance with 55 the provisions of law governing the determination and calculation of 56 overcharges.A. 5251--A 8 1 § 7. This act shall take effect immediately and shall apply to any 2 claims pending or filed on and after such date; provided that: 3 a. the amendments to section 12 of the emergency tenant protection act 4 of nineteen seventy-four made by sections one, two and three of this act 5 shall expire on the same date as such act expires and shall not affect 6 the expiration of such act as provided in section 17 of chapter 567 of 7 the laws of 1974; and 8 b. the amendments to section 26-516 of chapter 4 of title 26 of the 9 administrative code of the city of New York made by sections four and 10 five of this act shall expire on the same date as such law expires and 11 shall not affect the expiration of such law as provided under section 12 26-520 of such law.