AJ 210329 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 NO.: AJ 210329 RO
BERSAM HOLDING CORP., DRO DOCKET NO.: TA 10992
TENANT: Yvette Salcedo
ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
AND MODIFYING DISTRICT RENT ADMINISTRATOR'S ORDER
On October 27, 1986, the above-named petitioner-prior owner filed a
Petition for Administrative Review of an order issued on September
22, 1986 by the District Rent Administrator, 10 Columbus Circle, New
York, New York, concerning housing accommodations known as Apartment
C9 at 3620 Bedford Avenue, Brooklyn, New York,
wherein the District Rent Administrator determined the fair market
rent pursuant to a comparability study and the special fair market
rent guideline promulgated by the New York City Rent Guidelines
Board for use in calculating fair market appeals.
The Commissioner notes that this proceeding was initiated prior
to April 1, 1984. Sections 2526.1(a)(4) and 2521.1(d) of the
Rent Stabilization Code (effective May 1, 1987) governing rent
overcharge and fair market rent proceedings provide that
determination of these matters be based upon the law or code
provisions in effect on March 31, 1984. Therefore, unless
otherwise indicated, reference to Sections of the Rent
Stabilization Code (Code) contained herein are to the Code in
effect on April 30, 1987.
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.
The proceeding was originally commenced by the filing of a fair
market rent appeal by the tenant with the New York City
Conciliation and Appeals Board, one of the predecessor agencies to
the Division of Housing and Community Renewal.
In Order Number CDR 22,819, the District Rent Administrator
adjusted the initial legal regulated rent by establishing a fair
market rent of $310.30 effective November 1, 1982, the
commencement date of the initial rent stabilized rent.
In this petition, the prior owner asserts that in calculating the
fair market rent, the Administrator failed to include an allowance
for the new kitchen equipment, including refrigerator and range,
installed immediately prior to the tenant's occupancy and listed
on "Schedule B" filed with the prior owner's original answer.
AJ 210329 RO
The tenant did not submit an answer to this petition.
The Commissioner is of the opinion that this petition should be
Section 20C(1) of the Code provides that where there has been an
installation of new equipment in a stabilized apartment, the
monthly stabilization rent for said unit may be increased by
1/40th the cost of such equipment provided the tenant then in
occupancy has consented thereto in writing. In addition, the
courts have ruled that an increase for new equipment installed
during a vacancy prior to the commencement of a new tenancy or
upon the commencement of a new tenancy and reflected in the lease
rent, may be collected without the new tenant's consent to pay
such increase. (Matter of LeHavre Corp. v. Gribetz, et. al.,
N.Y.L.J. January 20, 1971, p.19, col.8 (Sup. Ct., Queens Co.,
Crisona, J.); Matter of Morton I. Hamberg v. CAB, N.Y.L.J.,
November 9, 1972, p.18, col.8 (Sup. Ct., N.Y. Co. Sarafite, J.)).
The record in this case indicates that the prior owner submitted
documentation of the installation of a new refrigerator and range
at the commencement of the tenancy indicating a total cost for
these 2 items of $604.62, but that the Administrator failed to
consider such documentation. By notice dated November 5, 1990,
the tenant was afforded an opportunity to respond to the prior
owner's submission of documentation. The tenant failed to
respond. The Commissioner therefore finds that an increase for
these improvements should be included in the fair market rent.
The fair market rent for the tenant's initial lease commencing
November 1, 1982 and expiring October 31, 1984 is established at
$325.42 [$310.30 plus $15.12 (1/40th of $604.62)]. The lawful
stabilized rent for the tenant's renewal lease commencing November
1, 1984 and expiring October 31, 1986 is established at $354.71
($325.42 plus Guidelines 16 increase of 9% for a two year renewal
lease). The total amount of excess rent for the period from
November 1, 1982 to August 31, 1986, including excess security, is
It is the DHCR's policy for fair market rent appeal cases that, in
the absence of evidence of any collusion between the present owner
and the former owner, an owner will be held responsible for excess
rent actually collected by it.
In response to a notice from the DHCR, the prior owner advised
that title was transferred from the prior owner on May 3, 1983 and
the prior owner last collected rent from the tenant April 4, 1983.
AJ 210329 RO
The prior owner (Bersam Holding Corp.) is directed to refund to
the tenant $147.48, representing excess rent for the period from
November 1, 1982 to April 30, 1983. This order is issued without
prejudice to the tenant's rights, if any, to proceed against the
former owner in a court of competent jurisdiction.
The current owner (3620 Realty Co.) is directed to refund to the
tenant $1,058.61, representing excess rent for the period from
May 1, 1983 to August 31, 1986 plus excess security.
The current owner is directed to roll back rent to the lawful
stabilized rent consistent with this decision and to refund or
fully credit against future rents over a period not exceeding six
months from the date of receipt of this order, the excess rent
collected by the current owner.
In event the current owner does not take appropriate action to
comply within 60 days from the date of this order, the tenant may
credit the excess rent paid to the current owner against the next
month(s) rent until fully offset.
THEREFORE, in accordance with the Rent Stabilization Law and Code,
ORDERED, that this petition be and the same hereby is granted and
the District Rent Administrator's order be and the same hereby is
modified to the extent hereinabove indicated.
JOSEPH A. D'AGOSTA