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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
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IN THE MATTER OF THE ADMINISTRATIVE ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.: AI 210197 RO
DISTRICT RENT OFFICE
David Realty Company, DOCKET NO.: K-003813-R
PETITIONER
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ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
IN PART
On September 29, 1986, the above-named owner filed a Petition for
Administrative Review against an order issued on September 22,
1986, by the Rent Administrator, Jamaica, New York, concerning
the housing accommodations known as 3028 Nostrand Avenue,
Brooklyn, New York, Apartment No. 1-O, wherein the Rent
Administrator determined that the owner had overcharged the
tenant.
The tenant originally commenced this proceeding by filing a
complaint of rent overcharge. In response the owner (a) stated
inter alia that there had been no timely objection, despite
service on the tenant, to an "RR-2" form that the owner had
filed, so that the complaint should have been dismissed, and (b)
submitted copies of bills for various kitchen and bathroom
improvements.
In the order docketed at number K-003813-R, the Administrator
established the lawful stabilized rent at $362.01 monthly through
September 30, 1986, determined that the tenant had been
overcharged and directed a refund of $1,753.26, including
interest on overcharges collected on and after April 1, 1984.
In this petition, the owner asserts in pertinent part: that the
order should be reversed because the form RR-1 served on the
tenant on July 2, 1984, stating that his rent was $428.82, was
not challenged within 90 days; that the Administrator erroneously
failed to give credit for a new bathroom sink and "vanity" and
kitchen cabinets along with installation costs; and that the
Administrator had erred in omitting a "vacancy" rental increase.
The tenant responds that the costs listed for the aforementioned
improvements are excessive and that no additional cost was
incurred in installing them.
The record indicates that the tenants later moved from the
subject apartment.
The Commissioner is of the opinion that the petition should be
granted in part.
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The Administrator's order here appealed concludes that because
the tenant did not file a timely objection to the Apartment
Registration, the rent as of April 1, 1984, registered therein,
is the Initial Legal Registered Rent. In so concluding the order
comports with applicable law. Petitioner's position, that the
higher rent listed on the same Registration as "effective on
May 1, 1984" be used as the base rent, conflicts with the rule
that the rent as of April 1, 1984, be used.
Turning to the question of the vacancy rental increase, the
owner's position is that it was entitled to a 10% increase under
Rent Guidelines Order Number 15, "which states that the landlord
is entitled to [same] if the prior tenant took occupancy of the
apartment between July, 1975 and June 30, 1979. The prior tenant
herein took occupancy on May 27, 1977. . . . "
It must here be noted that early in these proceedings the owner
had justifiably refused (for a reason not relevant here) to
submit copies of all leases entered into since June 30, 1975.
The record therefore contained no documentation of when the prior
tenant took occupancy. After the instant petition made that
question relevant, however, the Commissioner once more asked
petitioner to document the rental history herein, which
petitioner has done starting with August 1, 1977.
Guidelines Board Order 15 provides for a 10% vacancy increase for
units as to which vacancy allowance were last charged under Board
orders governing new tenancies period from July 1, 1975, through
June 30, 1979. The history now in the record does substantiate
petitioner's claim that the previous lease had commenced in 1977,
thus justifying a vacancy increase under that order. The lawful
stabilization rent for the lease that commenced on May 1, 1984,
must therefore be increased by 14% (4% + 10% vacancy allowance)
over the previous lawful rent of $309.17, resulting in a rent of
$352.45.
Turning next to the question of improvements, the owner is
correct in its contention that it submitted documentary evidence
showing it spent $25.00 for a "vanity" and $1,883.25 (including
tax) for kitchen "cabinets and tops." Their sum will be divided
by 40 pursuant to the Code, and the quotient, $47.72, added to
the lawful stabilized rent ($352.45) for the lease commencing on
May 1, 1984, plus the previously allowed $19.98 for the new
refrigerator and stove, yielding a lawful rental of $420.15 for
the prior tenant.
Applying the Guidelines 16 increase of 6% that the Administrator
has employed to determine the initial rent of the tenant herein,
yields a figure of $445.36 effective May 1, 1985, instead of the
$362.01 previously determined, resulting in an overcharge of
$454.00 (the rent charged) minus $445.36, times 17 months, or
$146.88. Adding interest of $9.90 and excess security deposited
of $8.64 yields a refundable total of $165.42. The lawful rent
as of June 30, 1986 is, as stated above, $445.36.
Because this determination concerns lawful rents only through
June 30, 1986, the owner is cautioned to adjust subsequent rents
to an amount no greater than that determined by the Rent
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Administrator's order plus any lawful increases, and to register
any adjusted rents, with this order and opinion being given as
the explanation for the adjustment.
This order may, upon the expiration of the period in which the
owner may institute a proceeding pursuant to Article 78 of the
Civil Practice Law and Rules, be filed and enforced in the same
manner as a judgment, or not in excess of twenty percent per
month thereof may be offset against any rent thereafter due the
owner.
THEREFORE, in accordance with the Rent Stabilization Law and
Code, it is
ORDERED, that this petition be, and the same hereby is, granted
to the extent of modifying the Rent Administrator's order as set
forth above.
ISSUED:
JOSEPH A. D'AGOSTA
Acting Deputy Commissioner
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