ADM. REVIEW DOCKET NO.: AK 110141 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.: AK 110141 RO
SCHLESINGER MGMT. CORP., DRO DOCKET NOS.:
TC-82918-G
: CDR 23777
PETITIONER :
------------------------------------X TENANT: Manya Mednik
ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
IN PART
On November 6, 1986 the above named petitioner-owner filed a Petition
for Administrative Review against an order issued on October 2, 1986 by
the District Rent Administrator, 10 Columbus Circle, New York, New York
concerning housing accommodations known as Apartment 2C at 105-20 66th
Avenue, Forest Hills, New York wherein the District Rent Administrator
determined that the owner had overcharged the tenant.
The issue in this appeal is whether the District Rent Administrator's
order was warranted.
The applicable sections of the Law are Section 26-516 of the Rent
Stabilization Law and Section 2526.1(a) of the current Rent
Stabilization Code.
This proceeding was originally commenced by the filing of a rent
overcharge complaint by the tenant, in which she stated that she had
commenced occupancy on August 15, 1982.
The owner was served with a copy of the complaint and was requested to
submit rent records to prove the lawfulness of the rent being charged.
In answer to the complaint, the owner submitted leases only from August
15, 1982.
In Order Number CDR 23777, the District Rent Administrator determined a
default rent and found that the tenant had been overcharged in the
amount of $1,132.71 as of October 30, 1984, and directed the owner to
refund such overcharge to the tenant as well as to reduce the rent.
In this petition, the owner contends in substance that it inadvertently
overcharged the tenant through a computer error, and that it has
calculated an overcharge of $268.32 as of October 30, 1984, the date the
tenant bought the subject apartment. With its petition the owner has
enclosed a lease from August 1, 1981 to July 31, 1982, with a rider
setting forth the prior rent and the increases for a new stove and
refrigerator. It is unclear whether this information was submitted to
the Administrator.
ADM. REVIEW DOCKET NO.: AK 110141 RO
In answer the tenant states that "I, Manya Mednik, agree to my
landlord's petition."
The Commissioner is of the opinion that this petition should be granted
in part.
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) to date and to produce such records to the DHCR
upon demand.
Section 26-516 of 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 produce rent records for
more than 4 years prior to the most recent registration, and
concomitantly, established a 4 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 right 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 4 years prior to April 1, 1984 of
their 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), in cases involving rent overcharge complaints filed
prior to April 1, 1984.
However, it has recently been held in the case of J.R.D. Mgt. v.
Eimicke, 148 A.D.2d 610, 539 N.Y.S.2d 667 (App. Div. 2d Dep't 1989),
motion for leave to reargue or for leave to appeal to the Court of
Appeals denied (App. Div. 2d Dep't, N.Y.L.J., June 28, 1989, p.25,
col.1), motion for leave to appeal to the 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 4 years of rent records.
ADM. REVIEW DOCKET NO.: AK 110141 RO
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 Dep't 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 present 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 base date rent is therefore the
$257.55 rent charged and paid on April 1, 1980. The Commissioner has
recalculated the lawful stabilization rents and the amount of
overcharge. They are set forth in the amended rent calculation chart
attached hereto and made a part hereof.
THEREFORE, in accordance with the Rent Stabilization Law and Code, it is
ORDERED, that this Petition be, and the same hereby is, granted in part
and that the District Rent Administrator's order be, and the same hereby
is, modified in accordance with this Order and Opinion. The lawful
stabilization rents and the amount of overcharge are established on the
attached chart, which is fully made a part of this order. The total
overcharge is $403.28 as of October 30, 1984.
ISSUED:
ELLIOT SANDER
Deputy Commissioner
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