AI 410100 RO; AI 410291 RO
STATE OF NEW YORK
DIVISION OF HOUSING AND COMMUNITY RENEWAL
OFFICE OF RENT ADMINISTRATION
92-31 UNION HALL STREET
JAMAICA, NEW YORK 11433
IN THE MATTER OF THE ADMINISTRATIVE ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NOS.: AI 410100 RO;
AI 410291 RO
125 EAST 31 STREET REALTY,
DRO DOCKET NO.: 2251
TENANT: BRENDA MAMBER
ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
MODIFYING ADMINISTRATOR'S ORDER
On December 17, 1986, the above-named petitioner-owner timely
re-filed a Petition for Administrative Review against an order
issued on April 30, 1986 by the Rent Administrator, 10 Columbus
Circle, New York, New York, concerning a housing accommodations
misnamed in the order as 233 West 83rd Street Apartment 7E, New
York, New York (the then-current address of the tenant) wherein the
Administrator determined that the tenant had been overcharged. The
Commissioner notes that the appeal inadvertently received two
docket numbers which are herein consolidated. Further it is noted
that the original rejected petition filed on September 19, 1986 is
considered timely because the order being appealed incorrectly
stated the owner's name and the address of the subject premises and
the owner alleged that DHCR never served it with a copy of the
The Commissioner has reviewed all of the evidence in the record and
has carefully considered that portion of the record relevant to the
issues raised by the administrative appeal.
This proceeding was commenced when the tenant filed an objection to
the registration of apartment 4F, 121 East 31 Street, New York, New
York. The tenant alleged that the owner had incorrectly registered
the subject apartment as exempt. Subsequently, the tenant also
questioned the amount of rent being charged.
In answer, the owner asserted that the tenant was not occupying the
unit as her primary residence and therefore, the unit should be
AI 410100 RO; AI 410291 RO
exempt from the Rent Stabilization Law.
On December 13, 1985, the owner was requested to substantiate the
April 1, 1980 rent by submitting a copy of the lease in effect on
April 1, 1980 and all leases subsequent thereto. The request was
not sent to the owner's attorney of record.
The owner responded but, the owner's submission was received by the
Division after the order herein appealed was issued.
In said order, the Administrator used procedures that are
customarily employed to establish the April 1, 1980 rent when an
owner has not substantiated it and based thereon determined that
the tenant had been overcharged in the amount of $2,520.22
inclusive of excess security.
In the appeal, the owner contends that the Administrator's order
should be reversed because:
1) the order was never served on the owner and,
in fact, names the owner's attorneys as
2) the Administrator erroneously defaulted the
owner even though the owner had submitted all
required leases; and
3) the Administrator had erroneously determined
that the apartment was subject to the Rent
Stabilization Law although the tenant had
ceased to maintain the premises as her primary
residence and had subleased the premises while
With its appeal, the owner resubmits the leases previously
The tenant contends that the order should be affirmed.
The Commissioner notes that the order here under review misstates
the owner's name and the subject premises. At the outset, the
Commissioner corrects these defects, amending the owner's name to
read 125 E. 31 Street Realty and amending the stated subject
premises to read 121 E. 31 Street Apartment 4F, New York, New York.
The Commissioner notes also that the address to which the order was
sent was incorrect.
The Commissioner is of the opinion that there was no violation of
the owner's due process rights in this case. The alleged failure
of the Administrator to serve the order on the owner resulted in no
prejudice to the owner. As evidenced by the owner's thorough
AI 410100 RO; AI 410291 RO
petition for administrative review, the owner exercised its
complete opportunity to be heard.
To ensure no violation of due process, all of the submissions have
been fully considered by the Commissioner, including the lease
history substantiating the April 1, 1980 rent.
The Commissioner accepts the lease history for consideration in
this appeal. As examination of the leases discloses that the April
1, 1980 base rent was $465.00 and that all rent increases since
April 1, 1980 conformed to applicable guidelines orders and that no
overcharge occurred. Accordingly, the Commissioner reverses that
part of the order that found an overcharge and directed a refund.
The applicability of the Rent Stabilization Law to various housing
accommodations is governed by Section 2520.11 of the Rent
Stabilization Code. The Commissioner finds that the Administrator
correctly determined pursuant to Code Section 2520.11 that the
subject apartment is not exempt and correctly directed the owner to
a Court of competent jurisdiction on the issue of the tenant's
If the owner has already complied with the Rent Administrator's
order and there are arrears due the owner as a result of the
instant determination, said arrears shall be payable immediately.
The tenant is no longer in occupancy at the subject apartment and
a copy of the order is being sent to the current occupant of the
THEREFORE, in accordance with the provisions of the Rent
Stabilization Law and Code, it is
ORDERED, that this petition be, and the same hereby is, granted in
part, and that the Rent Administrator's order be, and the same
hereby is, modified in accordance with this order and opinion.
JOSEPH A. D'AGOSTA