AI110267RO
STATE OF NEW YORK
DIVISION OF HOUSING AND COMMUNITY RENEWAL
OFFICE OF RENT ADMINISTRATION
GERTZ PLAZA
92-31 UNION HALL STREET
JAMAICA, NEW YORK 11433
------------------------------------X
IN THE MATTER OF THE ADMINISTRATIVE : ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO. AI110267RO
: DRO DOCKET NO. Q3122506R
Concerned Management,
TENANT: Joan Williams
PETITIONER :
------------------------------------X
ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
On September 29, 1986, the above-named owner filed a Petition for
Administrative Review against an order issued on August 25, 1986, by a
Rent Administrator, concerning the housing accommodations known as
71-04 Little Neck Parkway, Floral Park, New York, Apartment No. 134B,
wherein the Rent Administrator determined that the owner had overcharged
the tenant.
This proceeding was originally commenced by the filing in March, 1984,
of a rent overcharge complaint.
In answer to the tenant's complaint, the owner stated in substance that
the property had been in transition through foreclosure, and submitted
a rental history from the year 1979.
In Order Number 21,179, the Rent Administrator determined that, due to
the owner's failure to submit a complete rental history, the tenant had
been overcharged in the amount of $3113.07, and directed the owner to
refund such overcharge to the tenant as well as to reduce the rent.
In this petition, the owner contends in substance that it did not
default as it submitted all the rent records it had.
In answer to the owner's petition, the tenant states in substance that
she has been charged rent for a four-room apartment when in fact the
subject accommodations have three, so that, inter alia, a per-room
rental increase allowed by the above-referenced Division was too large
by 25%.
The Commissioner is of the opinion that this petition should be granted.
Section 42A of the former Rent Stabilization Code requires that an owner
retain complete records for each stabilized apartment in effect from
June 30, 1974 (or the date the apartment became subject to rent
stabilization, if later) and to produce such records to the DHCR upon
demand.
Section 26-516 of the Rent Stabilization Law, effective April 1, 1984,
limited an owner's obligation to provide rent records by providing that
AI110267RO
an owner may not be required to maintain or to produce rent records for
more than four years prior to the most recent registration, and
concomitantly, established a four-year limitation on the calculation of
rent overcharges.
It has been the DHCR's policy that overcharge complaints filed prior to
April 1, 1984, are to be processed pursuant to the Law or Code in effect
on March 31, 1984. (See Section 2526.1 (a) (4) of the current Rent
Stabilization Code.) The DHCR has therefore applied Section 42A of the
former Code to overcharge complaints filed prior to April 1, 1984,
requiring complete rent records in these cases. In following this
policy, the DHCR has sought to be consistent with the legislative intent
of the Omnibus Housing Act (Chapter 403, Laws of 1983), as implemented
by the New York City Conciliation and Appeals Board (CAB) the
predecessor agency to the DHCR, to determine rent overcharge complaints
filed with the CAB prior to April 1, 1984, by applying the law in effect
at the time such complaints were filed so as not to deprive such tenants
of their rights to have the lawful stabilized rent determined from the
June 30, 1974 base date and so as not to deprive tenants whose
overcharge claims accrued more than four years prior to April 1, 1984 of
the right to recover such overcharges. In such cases, if the owner
failed to produce the required rent records, the lawful stabilized rent
would be determined pursuant to the default procedure approved by the
Court of Appeals in 61 Jane Street Associates v. CAB, 65 N.Y.2d 898, 493
N.Y. S. 2d 455 (1985).
However, it has recently been held in the case of J.R.D. Mgmt. v.
Eimicke, 148 A.D.2d 610. 539 N.Y.S. 2d 667 (App. Div. 2d Dept., 1989),
motion for leave to reargue or for leave to appeal to the Court of
Appeals denied ( App. Div. 2d Dept., N.Y.L.J., June 28, 1989, p.25,
col.1), motion for leave to appeal to the Court of Appeals denied (Court
of Appeals, N.Y.L.J., Nov. 24, 1989, p.24, col.4), motion for leave to
reargue denied (Court of Appeals, N.Y.L.J., Feb. 15, 1990, p.25, col.1),
that the law in effect at the time of the determination of the
administrative complaint, rather than the law in effect at the time of
the filing of the complaint, must be applied, and that the DHCR could
not require an owner to produce more than four years of rent records.
Since the issuance of the decision in JRD, the Appellate Division, First
Department, in the case of Lavanant v. DHCR, 148 A.D.2d 185, 544
N.Y.S.2d 331 (1989), has issued a decision in direct conflict with the
holding in JRD. The Lavanant court expressly rejected the JRD ruling,
holding that the DHCR may properly require an owner to submit complete
rent records, rather than records for just four years, and that such
requirement is both rational and supported by the law and legislative
history of the Omnibus Housing Act.
Since in the instant case the subject dwelling unit is located in the
Second Department, the DHCR is constrained to follow the JRD decision in
determining the tenant's overcharge complaint, limiting the requirement
for rent records to April 1, 1980. An examination of the rent records
from April 1, 1980, discloses that no rent overcharge occurred.
Therefore, the Rent Administrator's order finding a rent overcharge must
be revoked.
As to the tenant's assertions regarding the number of rooms, etc., the
Commissioner can only entertain an assignment of error in an
Administrator's order if it is made in the context of a Petition for
Administrative Review. The tenant therefore had to file her own
AI110267RO
petition in order to challenge a calculation by the Administrator
related to the number of rooms in her apartment; she did not do so, and
cannot raise that question in this proceeding.
If the owner has already complied with the Rent Administrator's order
and there are arrears due to the owner as a result of the instant
determination, the tenant is permitted to pay off the arrears in 24
equal monthly installments. Should the tenant vacate after the issuance
of this order or have already vacated, said arrears shall be payable
immediately.
THEREFORE, in accordance with the Appellate Division ruling in JRD, it
is
ORDERED, that this petition for administrative review be, and the same
hereby is, granted, that the order of the Rent Administrator be, and the
same hereby is, revoked, and it is found that no rental overcharge
occurred.
ISSUED:
JOSEPH A. D'AGOSTA
Deputy Commissioner
|