AJ 410565 RO
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 410565 RO
MARGARET MILLER, DRO DOCKET NO.: L-3116840-R/
23,046
TENANT: DR. ROBERT SPALTEN
PETITIONER
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On October 29, 1986, the above-named petitioner-owner filed a
Petition for Administrative Review against an order issued on
September 24, 1986 by the Rent Administrator, 10 Columbus Circle,
New York, New York concerning the housing accommodation known as
Apartment 3C, at 9 East 67th Street, New York, New York wherein
the Administrator determined that an overcharge had occurred.
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 tenant originally commenced this proceeding by filing a
complaint of rent overcharge and of the owner's failure to offer
a renewal lease.
In answer to the complaint, the owner set forth a rent history
from November 1, 1972 and submitted a set of leases for the
period November 1, 1972 through January 31, 1979 and a rent roll
for September 1984. The owner asserted that in light of various
improvements which she had made and had not charged for, the
tenant had been undercharged. Subsequently, the owner submitted
bills for the improvements allegedly made before the tenant
commenced occupancy. The owner also asserted that the tenant had
renovated the apartment, i.e. had converted it to a two bedroom
apartment, without getting proper approval. The owner stated she
had not offered a renewal lease because she hoped to obtain the
apartment for owner-occupancy.
In the order here under review, the Administrator determined that
the tenant had been overcharged and directed the owner to roll
back the rent and to refund overcharges of $1,482.47. The
Administrator also directed the owner to offer the tenant a
renewal lease.
In its appeal, the owner contends that the tenant was
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undercharged because she did not charge permissible rent
increases, i.e.,
1) the owner did not charge for new appliances
or for renovating the kitchen;
2) the owner did not charge the vacancy increase
at the inception of the tenancy;
3) the owner did not charge an air conditioner
fee.
The owner also contends that the Administrator should have made
allowance for the $25.00 fee which the tenant agreed to pay as
consideration for the owner's permission to effectuate
alterations to the apartment. The owner further contends that
the Administrator's directive to offer the tenant a renewal lease
was erroneous in that it was made without consideration of the
owner's request for owner-occupancy of the apartment. Moreover,
the owner alleges that the tenant rents other stabilized
apartments and therefore may not be entitled to this rent
stabilized apartment. Finally, the owner contends that because
of the complexity of the facts in the instant matter, a hearing
should have been held before the Administrator rendered a
decision.
After careful consideration, the Commissioner is of the opinion
that this petition should be denied.
The Commissioner notes that the owner did not seek to collect any
of the uncharged rent increases. The Code provides for rent
increases that may be charged but does not mandate that they must
be charged. Where the rent charged is less than could have been
charged, the lawful stabilization rent is the rent that is
charged. Accordingly, the owner cannot now collect these
increases.
Pursuant to Code Section 2522.1, the legal regulated rent may be
increased or decreased as specified in the Code. The Code makes
no provision for fees such as the alteration fee agreed to by the
tenant where the tenant paid the costs of alteration. Code
Section 2520.13 provides that an agreement by the tenant to waive
the benefit of any provision of the Rent Stabilization Law or
Code is void. Moreover, pursuant to Code Section 2525.1, it is
unlawful, regardless of any contract, lease, or other obligation
for any person to demand or receive any rent for any housing
accommodation in excess of the legal regulated rent.
Accordingly, the Administrator did not err in disregarding the
agreed upon fee in determining the lawful stabilization rent.
As regards the owner's request to regain possession of the
subject apartment for its own use, the owner did not submit
evidence of having taken appropriate concrete action to achieve
that end. The Administrator was not required to ignore legal
requirements for lease renewals to conform to the owner's
precatory language. Accordingly, the Administrator correctly
directed the owner to offer the tenant a renewal lease. The
issue of the tenant's rights to a stabilized apartment should be
brought to the appropriate forum, a court of competent
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jurisdiction.
With respect to the owner's contention regarding a hearing, it
should be pointed out that due process requires full
consideration of all issues raised by the parties to the
administrative proceeding. However, the resolution of these
issues does not necessarily require an oral hearing which is
discretionary and not mandated by law. The Commissioner finds
that the evidence and written submissions in the instant case
were sufficient to render a determination.
On the basis of the entire evidence of record it is found that
the Administrator's order is correct and should be affirmed.
This order may, upon the expiration of the period in which the
owner may institute a proceeding pursuant to Article 78 of the
Civil Practice Law and Rules, be filed and enforced in the same
manner 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 provisions of the Rent
Stabilization Law and Code, it is
ORDERED, that this petition be, and the same hereby is, denied,
and that the order of the Rent Administrator be, and the same
hereby is, affirmed.
ISSUED:
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JOSEPH A. D'AGOSTA
Acting Deputy Commissioner
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