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 210226 RO
: DRO DOCKET NO. 74785-G
DAVID LANDAU TENANT: VICKI G. SCHNEIDER
PETITIONER :
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ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
AFTER REOPENING
On November 11, 1986, the above-named petitioner-owner filed
a Petition for Administrative Review against an order issued on
October 7, 1986, by the Rent Administrator, 10 Columbus Circle,
New York, New York, concerning the housing accommodations known as
8502 Fort Hamilton Parkway, Brooklyn, New York, Apartment No. 6E,
wherein the Rent ADministrator determined that the owner had
overcharged the tenant.
On June 28, 1989, the Commissioner issued an Order and
Opinion Denying the Owner's Petition.
On June 10, 1991, the Commissioner issued an Order Granting
Owner's Request for Reconsideration and Reopening of
Administrative Review Order on the basis that said order
incorrectly referred to the subject premises as 8502 Fort
Washington Parkway rather than 8502 Fort Hamilton Parkway, and
that a copy of the order was not sent to the current managing
agent although said current managing agent had registered as
managing agent prior to the issuance of the Commissioner's order.
In his request for reconsideration, the current managing agent
also contended that the Appellate Division decision in J.R.D.
Management v Eimicke infra issued prior to the Commissioner's
order mandates a different result and that the DHCR was supplied
with a complete rental history of the subject apartment from April
1, 1980.
The Administrative Appeal is being determined pursuant to the
provisions of Section 2526.1 of the Rent Stabilization Code.
The issue herein 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
AK 210226 RO
August, 1983, of a rent overcharge complaint by the tenant who
stated that she first moved to the subject apartment in April,
1980. The tenant submitted copies of her leases from April 1,
1980.
The owner was served with a copy of the complaint and was
directed to submit a complete rental history for the subject
apartment from the base date including copies of all leases. The
owner did not supply a complete rental history as required.
In Order Number CDR 23,964, the Rent Administrator determined
that due to the owner's failure to submit a complete rental
history , the owner had collected a rent overcharge of $4241.19
through August 31, 1986, including interest on that portion of the
overcharge occurring on and after April 1, 1984, and directed the
owner to refund such overcharge to the tenant.
In this petition, the prior managing agent contends in
substance that he was not credited with a $5.97 rent increase
effective May 16, 1981 under docket 2AC 570680 due to a major
capital improvement and that he would submit further information
to justify the tenant's original rent. No further information was
submitted by the prior managing agent.
In response to the prior managing agent's petition, the
tenant stated in substance that docket 2AC 570680 refers to rent
controlled tenants only. In support of such contention, the
tenant submitted a copy of the order issued under docket 2AC
570680. It is noted that such order affected only rent controlled
tenants.
In response to the Order Granting Reconsideration, the tenant
stated in substance that she believes the current managing agent
was notified of the Rent ADministrator's order in that he reduced
her rent as of December 1, 1986 and that J.R.D. Management v
Eimicke should not be applicable since the Rent Administrator's
order was issued in 1986 prior to the JRD decision.
The Commissioner is of the opinion that this petition should
be granted.
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) and to produce
such records to the DHCR upon demand.
Section 26-516 of the 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 to
produce rent records for more than four (4) years prior to the
most recent registration, and concomitantly, established a four
year limitation on the calculation of rent overcharges.
AK 210226 RO
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 rights 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 four
years prior to April 1, 1984 of the 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
Dept., 1989). motion for leave to reargue or for leave to appeal
to the Court of Appeals denied ( App. Div. 2d Dept., 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 four 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 Dept. 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. An examination of the rent records from April 1, 1980
discloses that no rent overcharge occurred in that the April 1,
1980 rent was $300.00 per month; it was then increased to $348.00
per month effective April 1, 1982 upon a lease renewal and to AK
210226 RO
$362.51 per month effective January 22, 1983 pursuant to a 4.17%
major capital improvement rent increase under docket OM-4237 and
to $395.14 per month effective April 1, 1985 upon a lease renewal
- all in accordance with applicable guideline rate increases and
major capital improvement rent increase rates.
With regard to the tenant's contentions, it is noted that the
proceeding was properly reopened and that the JRD ruling is
applicable.
If the owner has already complied with the Rent
Administrator's order and there are arrears due to the owner as a
result of the instant determination, the tenant shall be permitted
to pay off the arrears in twenty four equal monthly installments.
Should the tenant vacate after the issuance of this order or have
already vacated, said arrears shall be payable immediately.
THEREFORE, in accordance with the Appellate Division ruling
in JRD, it is
ORDERED, that this petition for administrative review be, and
the same hereby is, granted, that the Commissioner's order issued
on June 28, 1989 be, and the same hereby is, revoked, and that the
order of the Rent Administrator be, and the same hereby is,
revoked, and it is found that no rent overcharge
occurred.
ISSUED
ELLIOT SANDER
Deputy Commissioner
ADMINISTRATIVE REVIEW BUREAU
COVERING MEMORANDUM
ARB Docket No.: AK 210226 RO
DRO Docket No/Order No.: 74785-G
Tenant(s): Vicki G. Schneider
Owner: David Landau
Code Section: 2526.1 of RSC
Premises: 8502 Fort Hamilton Parkway, Brooklyn, New York, Apt. 6E
Order and Opinion Granting Petition
Petition granted pursuant to JRD since rental history from
April 1, 1980 was submitted. Examination of such rental history
showed there was no rent overcharge.
APPROVED:
Processing Attorney:
Supervising Attorney:
Bureau Chief:
Deputy Commissioner:
Mailed copies of Order and Determination to:
Tenant(s)
Owner
Tenant's Atty
Owner's Atty
Date: : by
signature
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