ADM. REVIEW DOCKET NO.: AK 110358-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 110358-RO
:
DRO DOCKET NOS.:
Q-3121653-R
CDR 25610
HUNTER COMPANY,
TENANT: Daniel Romanello
PETITIONER :
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ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
On November 13, 1986 the above named petitioner-owner filed
a Petition for Administrative Review against an order issued on
October 24, 1986 by the District Rent Administrator, 10 Columbus
Circle, New York, New York concerning housing accommodations
known as Apartment D15 at 147-41 38th Avenue, Flushing, 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, Section 2526.1(a) of the current Rent
Stabilization Code and Sections 2(m) and 20C of the former Rent
Stabilization Code.
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, 1984 of a rent overcharge complaint by the tenant, in
which he stated that he had commenced occupancy on June 1, 1980
at a rent of $332.35 per month.
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
ADM. REVIEW DOCKET NO.: AK 110358-RO
submitted a complete rental history from the base date as
required.
In an order issued on October 24, 1986 the District Rent
Administrator determined that the tenant had been overcharged in
the amount of $317.67 as of May 31, 1985, and directed the owner
to refund such overcharge to the tenant as well as to reduce the
rent. The overcharge ($4.69 per month in the tenant's first
lease and $5.44 per month in his next lease) occurred because the
Administrator disallowed an increase for an air conditioner.
In this petition, the owner contends in substance that there
was no rent overcharge in that the District Rent Administrator's
order mistakenly assumed that the air conditioner charge was for
the installation of a unit by the owner, whereas it was actually
for permission for the tenant to install his own unit; and that
New York City Conciliation and Appeals Board [C.A.B] opinions at
the time were allowing a charge of as much as $10.00 per month
for the privilege.
In answer, the tenant asserts in substance that he was not
notified of any extra charges; and that he currently has no air
conditioner because of the installation of new windows.
The Commissioner is of the opinion that this petition should
be granted.
C.A.B.policy was to allow "reasonable charges" for tenant
installation of air conditioners, where permission to install
such units was not a base date service. Once granted, the
permission became a required service which had to continue to be
granted to succeeding tenants. The lawful increase would be the
initial charge plus Guidelines increase. (Accord: C.A.B.
Opinion No. 4165) Increases up to $10.00 were allowed as
reasonable. While the Administrator determined a lawful
stabilization rent of $327.66 in the tenant's initial 1980 lease
(versus the $332.35 rent stated in the lease), that lease also
prohibited the tenant from installing his own air conditioner.
Because the owner permitted the tenant to install his own air
conditioner despite that clause, the commissioner finds that the
$4.69 per month by which the tenant's lease rent exceeded the
lawful rent otherwise calculated on the basis of the prior
tenant's rent should be considered a reasonable increase
allowable by virtue of the tenant being permitted to install his
own air conditioner. The Commissioner notes that, since the
charge becomes part of the base rent and since the permission is
thereby a required service, any clause in the lease to the
contrary is invalid. In his answer to the owner's petition the
tenant states that he does not have an air conditioner due to the
installation of new windows. It is not clear if this refers to a
permanent inability to install an air conditioner due to the
design of the new windows, or a temporary inability due to
construction. If a permanent inability, and thus an effective
denial of permission to install a unit, the tenant may wish to
file a complaint of a decrease in the services for which he is
paying, or the owner may wish to apply for permission to remove
that as a required service.
ADM. REVIEW DOCKET NO.: AK 110358-RO
Because a permanent $4.69 increase is being allowed in the
tenant's initial lease, the lawful stabilization rent is $332.35
per month in the lease from June 1, 1980 to May 31, 1982, and
$385.53 per month in the lease from June 1, 1982 to May 31,
1985. Because those are the rents actually charged, there has
been no overcharge as of May 31, 1985.
If the owner has already complied with the Administrator's
order and there are arrears due to the owner as a result of this
determination, the owner is directed to allow the tenant to pay
off the arrears in six equal monthly installments. Should the
tenant vacate after the issuance of this order, or have
previously vacated, said arrears shall be payable immediately.
THEREFORE, in accordance with the Rent Stabilization Law and
Code, it is
ORDERED, that this petition be, and the same hereby is,
granted and that the District Rent Administrator's order be, and
the same hereby is, revoked since there was no rent overcharge.
ISSUED:
ELLIOT SANDER
Deputy Commissioner
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