AJ 210153-RT
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 210153-RT
: DISTRICT RENT OFFICE
Ilene Gold, DOCKET NO. K 3103546-R
PETITIONER :
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ORDER AND OPINION DENYING ADMINISTRATIVE APPEAL
On October 8, 1986, the above-named tenant filed an
Administrative Appeal against an order issued on September 8,
1986, by the District Rent Administrator (10 Columbus Circle,
New York, New York), concerning the housing accommodations known
as 3310 Nostrand Avenue, Brooklyn, New York, Apartment No. 601,
wherein the Administrator had dismissed the tenant's overcharge
complaint.
The tenant commenced the proceeding below by filing a complaint
of rent overcharge with the Administrator in March of 1984. In
response to the tenant's complaint, the owner filed an answer
stating in substance that the issues raised in the tenant's
application had been determined by the Conciliation and Appeals
Board (CAB) and a court case, pursuant to which the rent had been
recalculated, and credits or refunds given to the tenant for any
overcharges.
The District Rent Administrator's order, appealed herein, stated
that a tenant may not waive his rights under the Rent
Stabilization Law and Code, but terminated the proceeding on the
ground that the "parties have apparently negotiated a settlement
of this matter . . .". However, the Administrator did attach a
rent overcharge calculation to this determination, which showed a
total rent overcharge (including treble damages) of $18,574.52.
On appeal, the petitioner contends in substance that she did not
negotiate a settlement with the owner, that it is apparent from
the rent calculation chart that she has been severely overcharged
and that the Administrator's dismissal should be reversed.
In response to the petition the owner states in pertinent part:
that the tenant did reach an agreement with it as to the amount
of overcharge in June 1984, as evidenced by the tenant's
computations submitted to owner at that time; that copies of the
Rent Ledger cards show that the tenant received an adjustment in
June and July of 1984; and that the Administrator erred in
forwarding to the tenant calculations not based on the factual
rental history of the apartment where the owner had reimbursed
the tenant in accordance with the orders of the CAB and the
court. In support of its contentions, the owner submitted the
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tenant's computation (dated June, 1984) and the Rent Ledger cards
for 1983 and 1984, which disclosed that the tenant had been
credited with a refund of $638.10 and that the rent had been
reduced to $507.99 as of July 1, 1984.
After a careful consideration of the entire evidence of record
the Commissioner is of the opinion that the administrative appeal
should be denied.
Section 2520.13 of the current Rent Stabilization Code provides
in pertinent part that an agreement by the tenant to waive the
benefit of any provision of the Rent Stabilization Law or Code is
void. Accordingly, the tenant's rent overcharge complaint is
being considered on the merits herein.
For the following reason, however, the Commissioner will not
consider all the rental records that have been submitted.
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 an owner may not be required to maintain or to
produce rent records for more than four (4) 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
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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 (App. Div. 1st Dept. 1989), has
issued a decision in direct conflict with the holding in JRD.
The Lavanant court expressly rejected the JRD ruling, finding
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.
The rental records from that date reveal an overcharge of
$611.83. Copies of the owner's records, however, bear out the
latter's assertion (with which the tenant has not disagreed) that
by July of 1984 it had adjusted the rent to eliminate further
overcharges and refunded all overcharge to the tenant by way of
rent credits.
There being, then, no refund or rental adjustment (as of
September 8, 1986) due to the tenant, it is clear that the
tenant's petition must be denied. It is noted that the lawful
stabilization rent for the subject apartment as of January 1,
1984 was $507.99. Further the rent calculation chart prepared by
the Rent Administrator showing an additional rent overcharge was
based on the owner's failure to submit a rent history prior to
April 1, 1980 - a requirement overruled by the JRD decision as
outlined above.
THEREFORE, in accordance with the Rent Stabilization Law and
Code as interpreted in the aforementioned JRD decision, it is
ORDERED, that this petition be, and the same hereby is, denied.
ISSUED:
JOSEPH A. D'AGOSTA
Acting Deputy Commissioner
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