AK 110151 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.:AK110151RO
DRO DOCKET NO.: Q3119737R
WESTMORELAND ASSOCIATES, CDR 20,185
TENANT: DONNA GIALCOMBARDO
PETITIONER
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On August 18, 1986, the above-named petitioner-owner filed a
Petition for Administrative Review against an order issued on July
23, 1986, by the Rent Administrator, 10 Columbus Circle, New York,
New York, concerning the housing accommodations known as 40-01
Little Neck Parkway, Little Neck, New York, Apartment No. 23B
wherein the Rent Administrator determined that the owner had
overcharged the tenant.
The Administrative Appeal is being determined pursuant to the
provisions of Section 2526.1 of the Rent Stabilization Code.
The issue here is whether the Rent Administrator's order was
warranted.
The Commissioner has reviewed all of the evidence in the record and
has carefully considered that portion of the record relevant to the
issue raised by the administrative appeal.
This proceeding was originally commenced by the filing in March 28,
1984 of a rent overcharge complaint by the tenant.
In answer to the tenant's complaint, the owner stated in substance
that the subject apartment had been vacancy decontrolled on
December 21, 1976 under Docket No. 2DR 63925, and that it had
purchased the property in February, 1982 and submitted a rental
history from August 1, 1980. The owner was asked to submit copies
of leases and/or rent ledgers for the period prior to August 1,
1980, but failed to do so.
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In Order Number CDR 20,185, the Rent Administrator determined that,
due to the owner's failure to submit a complete rental history, the
tenant had been overcharged in the amount of $7,893.40 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 did not
default as it had submitted all the rent records it had at that
time. The owner submits with its appeal various documents that it
has obtained from the prior owner since the order was issued,
including copies of the Landlord's Report of Statutory Decontrol,
a lease history and rent ledgers from 1977-1980.
Although afforded the opportunity to do so, the tenant did not
reply to the petition.
The Commissioner is of the opinion that this petition should be
denied.
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
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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).
However, it has recently been held in the case of J.R.D. Mgmt. 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.
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 instant 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.
Since the owner did not submit a complete rent history from April
1, 1980 in the proceeding below, the Administrator correctly found
an overcharge. Pursuant to Section 2529.6, an administrative
review is limited to facts or evidence before a Rent Administrator
as raised in the petition. Since the owner has not established
that the evidence submitted with the appeal could not reasonably
have been offered in the proceeding below the Commissioner will not
consider the evidence submitted for the first time with the appeal.
Based on the foregoing, a total overcharge of $7893.40 occurred
including excess security and interest on the overcharge occurring
on or after April 1, 1984.
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The owner is directed to reflect the findings and determinations
made in this order on all future registration statements, including
those for the current year if not already filed, citing this Order
as the basis for the change. Registration statements already on
file, however, should not be amended to reflect the findings and
determinations made in this order. The owner is further directed
to adjust subsequent rents to an amount no greater than that
determined by this order plus any lawful increases.
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, that
the order of the Rent Administrator be, and the same hereby is,
affirmed.
ISSUED
JOSEPH A. D'AGOSTA
Deputy Commissioner
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