STATE 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 be
17 assessed against an owner based solely on said owner's failure to file a
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD06209-08-9
A. 5251--A 2
1 proper 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-
20 tion statement filed four years prior to the most recent registration
21 statement is not challenged within four years of its filing, neither
22 such rent nor service of any registration shall be subject to challenge
23 at 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 registration
38 statement filed four years prior to the most recent registration state-
39 ment is not challenged within four years of its filing, neither such
40 rent nor service of any registration shall be subject to challenge at
41 any 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 four
49 years of the first overcharge alleged and no determination of an over-
50 charge and no award or calculation of an award of the amount of an over-
51 charge may be based upon an overcharge having occurred more than four
52 years before the complaint is filed. This paragraph shall preclude exam-
53 ination of the rental history of the housing accommodation prior to the
54 four-year period preceding the filing of a complaint pursuant to this
55 subdivision] in a court of competent jurisdiction at any time, however
A. 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 upon
4 an overcharge having occurred more than two years before the complaint
5 is filed or upon an overcharge which occurred prior to April first,
6 nineteen 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 or
38 counterclaim interposed within four years of the date of the alleged
39 overcharge but no recovery of three times the amount of the overcharge
40 may be awarded with respect to any overcharge which had occurred more
41 than two years before the action is commenced or counterclaim is inter-
42 posed.] 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 to
A. 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 at
A. 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 be
17 assessed against an owner based solely on said owner's failure to file a
18 timely 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 the
34 annual rent registration statement filed four years prior to the most
35 recent registration statement is not challenged within four years of its
36 filing, neither such rent nor service of any registration shall be
37 subject 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 date
52 of 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 which
A. 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 the
3 amount of rent set forth in the annual rent registration statement filed
4 four years prior to the most recent registration statement is not chal-
5 lenged within four years of its filing, neither such rent nor service of
6 any 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 the
14 first overcharge alleged and no determination of an overcharge and no
15 award or calculation of an award of the amount of an overcharge may be
16 based upon an overcharge having occurred more than four years before the
17 complaint 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 than
21 two years] shall be assessed upon all overcharges willfully collected by
22 the owner starting six years before the complaint is filed [or upon an
23 overcharge which occurred prior to April first, nineteen hundred eight-
24 y-four. (ii) Any complaint based upon overcharges occurring prior to the
25 date of filing of the initial rent registration as provided in section
26 26-517 of this chapter shall be filed within ninety days of the mailing
27 of notice to the tenant of such registration. This paragraph shall
28 preclude examination of the rental history of the housing accommodation
29 prior to the four-year period preceding the filing of a complaint pursu-
30 ant 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 the
A. 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 overcharge
44 shall be commenced within four years of the first overcharge alleged and
45 no determination of an overcharge and no award or calculation of an
46 award of the amount of any overcharge may be based upon an overcharge
47 having occurred more than four years before the action is commenced.
48 This section shall preclude examination of the rental history of the
49 housing accommodation prior to the four-year period immediately preced-
50 ing 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.