§ 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. 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. After a complaint of rent overcharge has been
filed and served on an owner, the voluntary adjustment of the rent
and/or the voluntary tender of a refund of rent overcharges shall not be
considered by the division of housing and community renewal or a court
of competent jurisdiction as evidence that the overcharge was not
willful. (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 most recent
reliable annual registration statement for a rent stabilized tenant
filed and served upon the tenant six or more 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. The division of housing and community renewal
or a court of competent jurisdiction, in investigating complaints of
overcharge and in determining legal regulated rent, shall consider all
available rent history which is reasonably necessary to make such
determinations. (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 six 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 six years, the
initial legal regulated rent) plus in each case, any lawful increases
and adjustments. Where the rent charged on the date six years prior to
the date of the initial registration of the accommodation cannot be
established, such rent shall be established by the division.

(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 may be filed with the
state division of housing and community renewal or in a court of
competent jurisdiction at any time, however any recovery of overcharge
penalties shall be limited to the six years preceding the complaint.

(ii) A penalty of three times the overcharge shall be assessed upon
all overcharges willfully collected by the owner starting six years
before the complaint is filed.

(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. The courts and the
division shall have concurrent jurisdiction, subject to the tenant's
choice of forum.

(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 at minimum
in the amount of one thousand but not to exceed two thousand dollars for
the first such offense, and at minimum in the amount of two thousand but
not to exceed three 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
at minimum in the amount of two thousand but not to exceed three
thousand dollars for the first such offense, and at minimum in the
amount of ten thousand but not to exceed eleven thousand dollars for
each subsequent offense or for a violation consisting of conduct
directed at the tenants of more than one housing accommodation.

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) Except where a specific provision of this law requires the
maintenance of rent records for a longer period, including records of
the useful life of improvements made to any housing accommodation or any
building, 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 six years prior to the most recent registration
or annual statement for such accommodation. However, an owner's election
not to maintain records shall not limit the authority of the division of
housing and community renewal and the courts to examine the rental
history and determine legal regulated rents pursuant to this
subdivision.

(9) The division of housing and community renewal and the courts, in
investigating complaints of overcharge and in determining legal
regulated rents, shall consider all available rent history which is
reasonably necessary to make such determinations, including but not
limited to (a) any rent registration or other records filed with the
state division of housing and community renewal, or any other state,
municipal or federal agency, regardless of the date to which the
information on such registration refers; (b) any order issued by any
state, municipal or federal agency; (c) any records maintained by the
owner or tenants; and (d) any public record kept in the regular course
of business by any state, municipal or federal agency. Nothing contained
in this paragraph shall limit the examination of rent history relevant
to a determination as to:

(i) whether the legality of a rental amount charged or registered is
reliable in light of all available evidence including, but not limited
to, whether an unexplained increase in the registered or lease rents, or
a fraudulent scheme to destabilize the housing accommodation, rendered
such rent or registration unreliable;

(ii) whether an accommodation is subject to the emergency tenant
protection act;

(iii) whether an order issued by the division of housing and community
renewal or a court of competent jurisdiction, including, but not limited
to an order issued pursuant to section seven of this act, or any
regulatory agreement or other contract with any governmental agency, and
remaining in effect within six years of the filing of a complaint
pursuant to this section, affects or limits the amount of rent that may
be charged or collected;

(iv) whether an overcharge was or was not willful;

(v) whether a rent adjustment that requires information regarding the
length of occupancy by a present or prior tenant was lawful;

(vi) the existence or terms and conditions of a preferential rent, or
the propriety of a legal registered rent during a period when the
tenants were charged a preferential rent;

(vii) the legality of a rent charged or registered immediately prior
to the registration of a preferential rent; or

(viii) the amount of the legal regulated rent where the apartment was
vacant or temporarily exempt on the date six years prior to a tenant's
complaint.

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. 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. The courts and the division shall have concurrent
jurisdiction, subject to the tenant's choice of forum.

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.