Emergency Tenant Protection Act 576/74

* S 12. Enforcement and procedures. a. (1) Subject to the conditions and limitations of this paragraph, any owner of housing accommodations in a city having a population of less than one million or a town or village as to which an emergency has been declared pursuant to section three, who, upon complaint of a tenant or of the state division of housing and community renewal, is found by the state division of housing
and community renewal, after a reasonable opportunity to be heard, to have collected an overcharge above the rent authorized for a housing accommodation subject to this act shall be liable to the tenant for a penalty equal to three times the amount of such overcharge. In no event shall such treble damage penalty be assessed against an owner based
solely on said owner`s failure to file a proper or timely initial or
annual rent registration statement. If the owner establishes by a preponderance of the evidence that the overcharge was neither willful nor attributable to his negligence, the state division of housing and community renewal shall establish the penalty as the amount of the overcharge plus interest at the rate of interest payable on a judgment pursuant to section five thousand four of the civil practice law and rules. (i) Except as to complaints filed pursuant to clause (ii) of this paragraph, the legal regulated rent for purposes of determining an
overcharge, shall be deemed to be the rent indicated in the annual registration statement filed four years prior to the most recent registration statement, (or, if more recently filed, the initial registration statement) plus in each case any subsequent lawful increases and adjustments. Where the amount of rent set forth in the annual rent registration statement filed four years prior to the most recent registration statement is not challenged within four years of its filing, neither such rent nor service of any registration shall be subject to challenge at any time thereafter. (ii) As to complaints filed within ninety days of the initial registration of a housing accommodation, the legal regulated rent for purposes of determining an overcharge shall be deemed to be the rent charged on the date four years
prior to the date of the initial registration of the housing
accommodation (or, if the housing accommodation was subject to this act for less than four years, the initial legal regulated rent) plus in each case, any lawful increases and adjustments. Where the rent charged on the date four years prior to the date of the initial registration of the accommodation cannot be established, such rent shall be established by the division. Where the amount of rent set forth in the annual rent
registration statement filed four years prior to the most recent
registration statement is not challenged within four years of its
filing, neither such rent nor service of any registration shall be
subject to challenge at any time thereafter.
(a) The order of the state division of housing and community renewal shall apportion the owner`s liability between or among two or more tenants found to have been overcharged by such owner during their particular tenancy of a unit.
(b) (i) Except as provided under clauses (ii) and (iii) of this
subparagraph, a complaint under this subdivision shall be filed with the state division of housing and community renewal 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. This paragraph shall preclude examination of the rental history of the housing accommodation prior to the four-year period preceding the filing of a complaint pursuant to this subdivision. (ii) 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 first,
nineteen hundred eighty-four.
(iii) Any complaint based upon overcharges occurring prior to the date of filing of the initial rent registration as provided in subdivision b
of section twelve-a of this act shall be filed within ninety days of the mailing of notice to the tenant of such registration.
(c) Any affected tenant shall be notified of and given an opportunity to join in any complaint filed by an officer or employee of the state division of housing and community renewal.
(d) An owner found to have overcharged shall, in all cases, be
assessed the reasonable costs and attorney`s fees of the proceeding, and interest from the date of the overcharge at the rate of interest payable on a judgment pursuant to section five thousand four of the civil practice law and rules.
(e) The order of the state division of housing and community renewal awarding penalties may, upon the expiration of the period in which the owner may institute a proceeding pursuant to article seventy-eight of the civil practice law and rules, be filed and enforced by a tenant in the same manner as a judgment or, in the alternative, not in excess of
twenty percent thereof per month may be offset against any rent thereafter due the owner.
(f) 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 five thousand four 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.
(2) In addition to issuing the specific orders provided for by other provisions of this act, the state division of housing and community renewal shall be empowered to enforce this act and its regulations by issuing, upon notice and a reasonable opportunity for the affected party to be heard, such other orders as it may deem appropriate.
(3) If the owner is found by the commissioner:
(i) to have violated an order of the division the commissioner may impose by administrative order after hearing, a civil penalty in the amount of two hundred fifty dollars for the first such offense and one thousand dollars for each subsequent offense; or * (ii) to have harassed a tenant to obtain vacancy of his housing accommodation, the commissioner may impose by administrative order after hearing, a civil penalty for any such violation. Such penalty shall be in the amount of not less than one thousand dollars nor more than five thousand dollars for each offense or for a violation consisting of
conduct directed at the tenants of more than one housing accommodation.
* NB Effective until June 15, 2011
* (ii) to have harassed a tenant to obtain vacancy of his housing accommodation, the commissioner may impose by administrative order after hearing, a civil penalty for any such violation. Such penalty shall be in the amount of up to one thousand dollars for a first such offense and up to twenty-five hundred dollars for each subsequent offense or for a violation consisting of conduct directed at the tenants of more than one
housing accommodation.
* NB Effective June 15, 2011
Such order shall be deemed a final determination for the purposes of
judicial review. Such penalty may, upon the expiration of the period for seeking review pursuant to article seventy-eight of the civil practice law and rules, be docketed and enforced in the manner of a judgment of
the supreme court.

(4) Any proceeding pursuant to article seventy-eight of the civil
practice law and rules seeking review of any action pursuant to this act shall be brought within sixty days of the expiration of the ninety day
period and any extension thereof provided in subdivision c of this section or the rendering of a determination, whichever is later. Any action or proceeding brought by or against the commissioner under this act shall be brought in the county in which the housing accommodation is located.
(5) Violations of this act or of the regulations and orders issued
pursuant thereto may be enjoined by the supreme court upon proceedings commenced by the state division of housing and community renewal or the tenant or tenants who allege they have been overcharged. The division shall not be required to post bond.
(6) In furtherance of its responsibility to enforce this act, the
state division of housing and community renewal shall be empowered to administer oaths, issue subpoenas, conduct investigations, make inspections and designate officers to hear and report. The division shall safeguard the confidentiality of information furnished to it at the request of the person furnishing same, unless such information must be made public in the interest of establishing a record for the future
guidance of persons subject to this act.
(7) In any action or proceeding before a court wherein a party relies for a ground of relief or defense or raises issue or brings into question the construction or validity of this act or any regulation, order or requirement hereunder, the court having jurisdiction of such action or proceeding may at any stage certify such fact to the state division of housing and community renewal. The state division of housing and community renewal may intervene in any such action or proceeding.
(8) Any owner who has duly registered a housing accommodation pursuant to section twelve-a of this act shall not be required to maintain or produce any records relating to rentals of such accommodation more than four years prior to the most recent registration or annual statement for
such accommodation.
b. Within a city having a population of one million or more, the state division of housing and community renewal shall have such powers to enforce this act as shall be provided in the New York city rent stabilization law of nineteen hundred sixty-nine, as amended, or as shall otherwise be provided by law.
c. The state division of housing and community renewal may, by
regulation, provide for administrative review of all orders and
determinations issued by it pursuant to this act. Any such regulation shall provide that if a petition for such review is not determined within ninety days after it is filed, it shall be deemed to be denied. However, the division may grant one extension not to exceed thirty days with the consent of the party filing such petition; any further extension may only be granted with the consent of all parties to the petition. No proceeding may be brought pursuant to article seventy-eight of the civil practice law and rules to challange any order or determination which is subject to such administrative review unless such review has been sought and either (1) a determination thereon has been made or (2) the ninety-day period provided for determination of the petition for review (or any extension thereof) has expired.
* NB Expires June 15, 2011