§ 12. Enforcement and procedures. a. (1) Subject to the conditions and\nlimitations of this paragraph, any owner of housing accommodations in a\ncity having a population of less than one million or a town or village\nas to which an emergency has been declared pursuant to section three,\nwho, upon complaint of a tenant or of the state division of housing and\ncommunity renewal, is found by the state division of housing and\ncommunity renewal, after a reasonable opportunity to be heard, to have\ncollected an overcharge above the rent authorized for a housing\naccommodation subject to this act shall be liable to the tenant for a\npenalty equal to three times the amount of such overcharge. If the owner\nestablishes by a preponderance of the evidence that the overcharge was\nneither willful nor attributable to his negligence, the state division\nof housing and community renewal shall establish the penalty as the\namount of the overcharge plus interest at the rate of interest payable\non a judgment pursuant to section five thousand four of the civil\npractice law and rules. After a complaint of rent overcharge has been\nfiled and served on an owner, the voluntary adjustment of the rent\nand/or the voluntary tender of a refund of rent overcharges shall not be\nconsidered by the division of housing and community renewal or a court\nof competent jurisdiction as evidence that the overcharge was not\nwillful. (i) Except as to complaints filed pursuant to clause (ii) of\nthis paragraph, the legal regulated rent for purposes of determining an\novercharge, shall be deemed to be the rent indicated in the most recent\nreliable annual registration statement for a rent stabilized tenant\nfiled and served upon the tenant six or more years prior to the most\nrecent registration statement, (or, if more recently filed, the initial\nregistration statement) plus in each case any subsequent lawful\nincreases and adjustments. The division of housing and community renewal\nor a court of competent jurisdiction, in investigating complaints of\novercharge and in determining legal regulated rent, shall consider all\navailable rent history which is reasonably necessary to make such\ndeterminations. (ii) As to complaints filed within ninety days of the\ninitial registration of a housing accommodation, the legal regulated\nrent for purposes of determining an overcharge shall be deemed to be the\nrent charged on the date six years prior to the date of the initial\nregistration of the housing accommodation (or, if the housing\naccommodation was subject to this act for less than six years, the\ninitial legal regulated rent) plus in each case, any lawful increases\nand adjustments. Where the rent charged on the date six years prior to\nthe date of the initial registration of the accommodation cannot be\nestablished, such rent shall be established by the division.\n (a) The order of the state division of housing and community renewal\nshall apportion the owner's liability between or among two or more\ntenants found to have been overcharged by such owner during their\nparticular tenancy of a unit.\n (b) (i) Except as provided under clauses (ii) and (iii) of this\nsubparagraph, a complaint under this subdivision may be filed with the\nstate division of housing and community renewal or in a court of\ncompetent jurisdiction at any time, however any recovery of overcharge\npenalties shall be limited to the six years preceding the complaint.\n (ii) A penalty of three times the overcharge shall be assessed upon\nall overcharges willfully collected by the owner starting six years\nbefore the complaint is filed.\n (iii) Any complaint based upon overcharges occurring prior to the date\nof filing of the initial rent registration as provided in subdivision b\nof section twelve-a of this act shall be filed within ninety days of the\nmailing of notice to the tenant of such registration.\n (c) Any affected tenant shall be notified of and given an opportunity\nto join in any
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