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 410510-RO
:
DRO DOCKET NO.: TC 077813-G
LINCOLN PLAZA
ASSOCIATES PETITIONER :
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On October 14, 1986, the above-named petitioner-owner filed a petition for
administrative review of an order issued on September 12, 1986, by the
Rent Administrator concerning the housing accommodation known as
Apartment 20C, 20 West 64th Street, New York, New York. The Administrator
directed the owner to roll back the rent and to refund overcharges of
$7274.79 including excess security and interest on overcharges collected
on or after April 1, 1984.
The Commissioner has reviewed this record and carefully considered that
portion relevant to the issues raised by this appeal.
The Commissioner notes that this proceeding was initiated prior to April
1, 1984. Sections 2526.1 (a) and 2521.1 (d) of the Rent Stabilization
Code (effective May 1, 1987) governing rent overcharge and fair market
tent 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, any reference in this order and opinion to Section of
the Rent Stabilization Code is to the Code in effect on April 30, 1987,
and this proceeding is being determined in accordance therewith.
The tenant (Koren K. Jones) commenced this proceeding on October 26, 1983
by filing an overcharge complaint in which she indicated that she moved
into the subject apartment on October 1, 1979 pursuant to a two year lease
at a rental of $750.00 per month. She said she had requested a copy of
the prior tenant's lease to see if she was being overcharged but had not
received same. She also explained that the lease for her apartment was in
the name of Julian Kaplan, her father, but that she has been the tenant
for the whole term of the leases, that the landlord knew she would be the
tenant, and that he has been accepting her checks.
The complaint was served on the owner on November 30, 1983. The owner did
not respond at that time.
As a result of a Notice of Pending Default sent on March 11, 1986, the
owner submitted a statement that the tenant for this apartment is Julian
Kaplan. The owner enclosed a copy of the original lease dated September
15, 1979, the last renewal dated August 30, 1982, and a lease cancellation
agreement dated September 10, 1984.
DOCKET NUMBER: AJ 410510-RO
In a subsequent letter dated July 31, 1986, the owner submitted the
certificate of occupancy for the building and again asserted that the
complainant is not the tenant.
In the absence of a complete rent history for the apartment, the
Administrator used established default procedures in determining the
lawful rent and calculating the overcharges. The rent was computed by
using the tenant's vacancy rent minus a guideline and vacancy allowance
and overcharges were computed up through September 30, 1984. The
Administrator also advised the owner that since the agency's records
reveal that the rents and services for the building have not been
registered the owner may not increase the established rent until the
registration requirements are met.
In the petition for administrative review, the owner asserts that it
adequately established that the complainant was not the tenant of record
when it submitted the lease, lease renewal and lease cancellation form,
all indicating Julian Kaplan as the tenant. The owner added that Mr.
Kaplan purchased the apartment in March 1985.
The tenant did not answer the petition.
After careful consideration of the evidence of record, the Commissioner is
of the opinion that the petition should be denied.
A review of the record reveals that there is sufficient evidence to
establish that the complainant was a lawful occupant of the subject
apartment during the period of time that overcharges were found by the
Administrator. The complaint specifically stated that the leases were in
the name of the complainant's father so the owner's submission of
documents bearing the father's name does not contradict the complainants
own statements and does not establish that the complainant did not occupy
the apartment and pay the rent. The first renewal lease is signed by
Julia Kaplan as "tenant" and by Koren Jones as "witness". Moreover, the
Division's current records reveal that the 1984 apartment registration
filed by the owner names the tenants as "Kaplan/Jones".
Based on the foregoing the Commissioner finds that the Administrator
properly found the owner in default and established the rent and
overcharges accordingly. The owner's attempted submission of rent records
with the petition is not accepted since the scope of review in
administrative appeals is limited to facts or evidence before the
Administrator unless it is established that certain facts or evidence
could not reasonably have been submitted prior to the issuance of the
order being appealed. The owner herein had ample opportunity to submit
the leases it included with the petition and its reliance on the dubious
position that the complainant was not the tenant of record when it
registered that person as the tenant is not sufficient to warrant
consideration of the leases for the first time on appeal.
The owner was requested on two separate ocassions to submit a complete
rental history. The owner 's timely response to these requests would not
have precluded the owner from raising the issue of the complainant's
DOCKET NUMBER: AJ 410510-RO
standing to file a complaint. Given the thousands of proceedings awaiting
decision by DHCR, it is unreasonable to require DHCR to make intermediate
decisions on individual issues.
THEREFORE, in accordance with the Rent Stabilization Law and Code, it is
ORDERED, that this petition be, and the same hereby is, denied and the
Rent Administrator's order be, and the same hereby is, affirmed.
ISSUED:
ELLIOT SANDER
Deputy Commissioner
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