STATE OF NEW YORK
DIVISION OF HOUSING AND COMMUNITY RENEWAL
OFFICE OF RENT ADMINISTRATION
92-31 UNION HALL STREET
JAMAICA, NEW YORK 11433
IN THE MATTER OF THE ADMINISTRATIVE : ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO. AK 210434 RO
: DRO DOCKET NO. K-3103207-R
BIST MANAGEMENT TENANT: ALEXANDER GALINSKY
ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
On November 7, 1986, the above-named petitioner-owner filed a
Petition for Administrative Review against an order issued on
October 24, 1986, by the Rent Administrator, 10 Columbus Circle,
New York, New York, concerning the housing accommodations known as
1833 East 12th Street, Brooklyn, New York, Apartment No. 4K,
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 herein is whether the Rent Administrator's order
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 state that he had commenced occupancy on October 20, 1980 at a
rental of $360.00 per month.
The owner was served with a copy of the complaint and was
directed to submit rent records from the base date to prove the
lawfulness of the rent being charged. In answer to the complaint,
the owner submitted a rental history from August 1, 1976.
In Order Number CDR 24,865, 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 $187.79
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
submitted a rental history from August 1, 1976, and should not
have been defaulted.
AK 210434 RO
The Commissioner is of the opinion that this petition should
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.
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
AK 210434 RO
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 August 1, 1976
discloses that no rent overcharge occurred in that a prior
tenant's rent was $234.15 effective August 1, 1976, and the rent
was increased to $242.35 effective August 1, 1978 pursuant to a
renewal lease, to $345.14 effective February 1, 1980 pursuant to a
vacancy lease, to $360.00 pursuant to the two year vacancy lease
of the tenant herein effective October 20, 1980, to $385.20
pursuant to a two year renewal lease effective November 1, 1982,
and to $419.87 pursuant to a two year renewal lease effective
November 1, 1984 - all in accordance with applicable guideline and
vacancy rent increases for the current tenant.
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 is permitted to
pay off the arrears in three 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, and, that the order of the Rent
Administrator be, and the same hereby is, revoked, and it is found
that no rent overcharge occurred.
ADMINISTRATIVE REVIEW BUREAU
ARB Docket No.: AK 210434 RO
DRO Docket No/Order No.: K-3103207-R
Tenant(s): Alexander Galinsky
Owner: Bist Management
Code Section: 2526.1 of RSC
Premises: 1833 East 12th Street, Brooklyn, New York, Apt 4K
Order and Opinion Granting Petition
Petition granted on basis owner submitted complete rental
history pursuant to JRD and examination of such rental history
discloses that no rent overcharge occurred.
Mailed copies of Order and Determination to:
Date: : by