Docket Number: AK-410015-RT
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 410015 RT
JASON ALEXANDER, DRO DOCKET NO.: U-3122743-R
ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
On November 3, 1986, the above-named petitioner-tenant filed a
Petition for Administrative Review against an order issued on
October 24, 1986 by the Rent Administrator, 92-31 Union Hall Street,
Jamaica, NY concerning the housing accommodations known as 600 10th
Avenue, New York, New York, Apartment 4-FS.
The Commissioner notes that this proceeding was initiated prior to
April 1, 1984. Section 2526.1(a)(4) of the Rent Stabilization Code
effective May 1, 1987 governing rent overcharge proceedings and
Section 2521.1(d) of such Code governing fair market rent appeals
provide that determination of these matters be based upon the law or
Code provisions in effect on March 31, 1984. Therefore, unless
otherwise indicated, reference to Sections of the Rent Stabilization
Code (Code) contained herein are to the Code in effect on April 30,
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 commenced on February 15, 1984 by the tenant
filing a complaint of rent overcharge. The tenant took occupancy
pursuant to a lease commencing February 1, 1984 and expiring January
31, 1985 at a monthly rental of $675.00.
The owner was served with a copy of the complaint and directed to
submit complete rental records. In response, the owner asserted
that the tenant had withdrawn the complaint and submitted a copy of
a letter signed by the tenant indicating same. The tenant
subsequently advised the Division that he did not wish to withdraw
The owner was subsequently served with a Final Notice of Pending
Default and provided an opportunity to submit the required records.
The owner did not reply to the notice.
Docket Number: AK-410015-RT
In Order No. CDR 25, 213, the Rent Administrator established the
lawful stabilization rent based on the owner's failure to submit a
complete rental history, determined that the owner had collected
an overcharge from the tenant in the amount of $3,556.41, including
treble damages, and directed the owner to refund the overcharge
amount to the tenant.
In this petition the tenant contends that the Rent Administrator's
calculations should be modified to include the renewal lease which
commenced February 1, 1985 and expired January 31, 1986 at a monthly
rental of $675.00. The tenant further indicated that he had vacated
the subject apartment.
In response, the owner asserts that the petition should be denied
and resubmits a copy of the above mentioned withdrawal letter. The
owner further asserts that the rent charged was due to the
substantial alteration of the subject apartment.
The Commissioner is of the opinion that this petition should be
The Commissioner finds that although the tenant did not submit
updated rental data to the Rent Administrator during the proceeding
below, it is the legal obligation of the owner pursuant to Section
42A of the Code to submit a complete rental history for the subject
apartment. Moreover, owners have been required to register
apartment rents with the DHCR annually since April 1, 1984. The
Administrator could have obtained the updated rental information
from the owner or from the DHCR's own registration records.
Therefore, the Commissioner finds that, considering the equities
involved, the tenant should not be penalized for the Administrator's
failure to obtain the updated rental data, particularly in view of
the fact that an overcharge was determined, and that the rental
information submitted by the tenant should be considered at this
The Commissioner has recomputed the lawful stabilized rent and the
amount of the overcharge as indicated on chart attached hereto and
made a part hereof.
Regarding the owner's contention that the tenant had withdrawn the
complaint, Section 11 of the Rent Stabilization Code provides that
an agreement by the tenant to waive the benefit of any provisions of
the Rent Stabilization Law and Code shall be void. It is noted
that, notwithstanding the tenant's signed withdrawal, the tenant
subsequently advised the DHCR that he did not want to withdraw the
complaint. Based on the foregoing and the provisions of Section 11,
the Commissioner finds that the Administrator's determination of the
tenant's overcharge complaint was proper.
As to the owner's claim that the rental charged the tenant was
proper because the subject apartment was substantially altered, the
Commissioner notes that since the owner failed to raise this issue
Docket Number: AK-410015-RT
affirmatively in a timely petition, the raising of such an issue in
an answer to the tenant's petition cannot operate as a proper
challenge to the order issued.
This order may, upon 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 by the tenant in the same
manner as a judgment.
Because this determination concerns lawful rent only through January
31, 1986, the owner is cautioned to adjust subsequent rents to an
amount no greater than that determined by the Order and Opinion, and
to register any adjusted rent with this Order and Opinion being
given as the explanation for the adjustment. A copy of this Order
and Opinion is being sent to the tenant now in occupancy.
THEREFORE, in accordance with the Rent Stabilization Law and Code,
ORDERED, that this petition be, and the same hereby is, granted and
the Rent Administrator's order be, and the same hereby is, modified
in accordance with this Order and Opinion. The amount of the
overcharge through January 31, 1986 is $6,103.28.