AJ 410344 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 410344 RO
R. W. KERN, INCORPORATED,
DRO DOCKET NO.: L 3110217-R
ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On October 24, 1986, the above-named petitioner-owner filed a
Petition for Administrative Review against an order issued on
October 20, 1986 by a Rent Administrator concerning housing
accommodations known as Apartment 36D at 211 West 56th Street,
New York, New York wherein the District Rent Administrator
determined that the tenant had been overcharged in the amount of
$275.73, including excess security and interest on overcharges
collected since April 1, 1984.
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.
This proceeding was originally commenced by the filing of a rent
overcharge complaint by the tenant on March 28, 1984.
The tenants took occupancy pursuant to a one year lease
commencing March 1, 1983, and expiring February 28, 1984, at a
monthly rent of $1,138.38. The complaint also stated that the
tenant had assumed tenancy when his roommate, who was the prior
tenant, vacated the apartment.
The owner was served with a copy of the complaint and was
directed to submit a complete lease history, to establish the
lawfulness of the rent being charged. The owner complied with
AJ 410344 RO
The subject-premises became subject to the Rent Stabilization
Code in accordance with Section 421-a of the New York State Real
Property Tax Law. The initial tenancy of the premises commenced
on October 1, 1978, under a two-year lease at a monthly rent of
In Order Number L 3110217 R, issued on October 20, 1986, the Rent
Administrator determined that the complaining tenant had been
overcharged in the amount of $275.73, including excess security
and interest on overcharges collected since April 1, 1984. The
lawful rent as of the effective date of the order was determined
as $1,187.73, which was $9.60 in excess of the rent actually
charged the tenant.
In its petition dated October 20, 1986, the owner amended the
Administrator's rent calculations chart to include various
increases of the lawful stabilized rent. Petitioner also changed
the effective date of the initial lease to October 1, 1978, from
June 1, 1978. As a result, petitioner proposes that all
overcharges be eliminated, and that the final lawful rent stated
in the order be increased to $1,200.29 from $1,187.73.
The Commissioner is of the opinion that this petition should be
The petitioner's calculations do not conform to the guidelines or
to the provisions of the Rent Stabilization Code. It is noted
that the petitioner incorrectly calculated the prior tenants'
vacancy lease effective March 1, 1980, by using a base rent of
$724.33, while the correct base is $648.97, which is the initial,
or base, rent of $635.00 plus the first 2.2% increase under the
421-a program. Since the petitioner's calculations fail to make
this adjustment, its proposed lease history must be rejected.
The overcharges and lawful rent determined by the Administrator
THEREFORE, in accordance with the Rent Stabilization Law and
Code, it is
ORDERED, that the owner's petition be, and the same hereby is,
denied, and that the Administrator's order be, and the same
hereby is, affirmed.