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.: AJ 110465-RO
:
DRO DOCKET NO.: Q 3121965-R
ROSA MEX, CDR 22,476
PETITIONER :
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On October 15, 1986, the above named petitioner-owner filed a Petition for
Administrative Review against an order issued on September 17, 1986, by
the District Rent Administrator, 10 Columbus Circle, New York, New York,
concerning housing accommodations known as Apartment C-3, 25-58 35th
Street, Astoria, New York, wherein the District Rent Administrator
determined that the owner had overcharged the tenant.
The issue in this appeal is whether the District Rent Administrator's
order was warranted.
The applicable section of the law is Section 2526.1 of the Rent
Stabilization Code.
The Commissioner has reviewed all of the evidence in the record and has
carefully considered that portion of the record relevant to the issue
raised by the administrative appeal.
This proceeding was commenced on March 23, 1984 by the tenant's (James P.
Sullivan) filing of a rent overcharge complaint with the New York City
Conciliation and Appeals Board (CAB), the agency formerly charged with
enforcement of the Rent Stabilization Law.
In her answer to the tenant's complaint, the owner submitted a complete
rental history for the subject apartment.
In Order Number CDR 22,476 issued September 17, 1986, the District Rent
Administrator determined that the tenant had been overcharged since
February 1, 1980, and accordingly, directed the owner to refund to the
tenant $1,562.57 which included excess security and interest on that
portion of the overcharge occurring on or after April 1, 1984.
In its petition, the owner contends in substance that the District Rent
Administrator's order is incorrect and should be revoked because:
1) the Administrator failed to consider the fact that the
allowable increases exceeded the actual rent collected for
several years and also failed to credit the owner with the
allowable increases;
DOCKET NUMBER: AJ 110465-RO
2) the prior tenant's vacancy lease was increased by 2-1/2% on
March 1, 1979 pursuant to Order Number 10B;
3) the complaining tenant informed the owner shortly after
filing his complaint that he had withdrawn the complaint;
4) the DHCR does not have jurisdiction over this matter as the
tenant's complaint was under the jurisdiction of the CAB and
was subsequently withdrawn.
In response to the owner's petition, the tenant has requested a
determination of the legal rent for the subject apartment.
The Commissioner is of the opinion that this petition should be denied.
On examination of the rental history for the subject apartment indicates
that the Administrator correctly computed the legal stabilization rents
and the amounts of overcharge.
The Commissioner notes that prior tenants of the subject apartment were
charged less than the maximum legal rent and the owner herein thought it
could base future rent increases on the amount that could have been
charged. However, it is an error to assume that a subsequent rent
increase can be calculated from the maximum rent an owner could have
charged, even when, in fact, the owner charged less. The rule is that
such an owner has waived any rent over the rent actually charged, and
that the actual rent is the lawful rent from which subsequent increases
must be computed.
With regard to the owner's contention that it was entitled to a 2.5%
increase on March 1, 1979 pursuant to Guidelines 10B, the Commissioner
notes that Rent Guidelines Board Order Number 10B permitted a 2.5%
temporary fuel surcharge (which did not become part of the base rent for
guidelines purposes) for the prior tenant's one year vacancy lease which
commenced on July 1, 1978, but that the owner mistakenly thought that the
Guidelines 10B increase was a permanent increase.
A further review of the rental history for the subject apartment discloses
that there were two different tenants during the Guidelines 11 period and
the owner apparently thought it was entitled to two Guidelines 11 rent
increases. However, the compounding of guidelines increases within the
same guidelines period is prohibited. Accordingly, the Commissioner finds
that the Administrator correctly limited the owner to one Guidelines 11
increase.
With regard to the owner's contention that the tenant had withdrawn his
complaint prior to the issuance of the Administrator's order, the
Commissioner notes that the owner has not submitted any evidence to
support this bare allegation. Furthermore, this issue was raised by the
owner for the first time on appeal, and thus, it may not be considered by
the Commissioner at this stage of the proceeding as this is not a de novo
proceeding.
Finally, with regard to the owner's contention that the DHCR does not have
jurisdiction over the tenant's complaint because the complaint was made to
the CAB, the Commissioner notes that on April 1,1984, responsibility for
DOCKET NUMBER: AJ 110465-RO
administration of rent stabilization in New York City was transferred from
the CAB to DHCR. Thus, DHCR does have jurisdiction over the instant
proceeding.
This order may upon the expiration of the period in which the owner may
institute a proceeding pursuant to Article 78 o the Civil Practice Law and
Rules, be filed and enforced 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, denied, and that
the District Rent Administrator's order be, and the same hereby is,
affirmed.
ISSUED:
ELLIOT SANDER
Deputy Commissioner
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