
    In the Matter of Elm Realty, Inc., et al., Respondents, v Office of Rent Control, Appellant.
    Argued June 10, 1981;
    decided June 29, 1981
    
      APPEARANCES OF COUNSEL
    
      Alan W. Ginsberg and Harry Michelson for appellant.
    
      John V. Salierno and Martin A. Wein for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified by reinstating the rent commissioner’s determination relating to Elm Realty, Inc., and the petitioner Visco insofar as the commissioner directed Visco to repay illegally collected rent.

With respect to Elm Realty, Inc., the commissioner did not misconstrue the statute (Administrative Code of City of New York, § Y51-11.0, subd b, par [2], cl [a]) or abuse his discretion as a matter of law by imposing a penalty for each monthly overcharge of rent.

With respect to petitioner Visco the Appellate Division erred in holding that he could not be held personally responsible for his acts or be required to make restitution. The applicable section of the Administrative Code (Y5110.0) expressly provides that “any person” may be subject to civil penalties for violating the law and, of course, he can be compelled to refund the sums unlawfully obtained. However, the civil penalties which are penal in nature and would go to the governing body rather than a private litigant (cf. Carr v Rischer, 119 NY 117), must be held to have abated upon the death of the petitioner (cf. People v Mintz, 20 NY2d 753, 770).

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur.

Order modified, with costs to appellant, in accordance with the memorandum herein and, as so modified, affirmed.  