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 510570-RO
DRO DOC NO. U-3124287-R
A D I MANAGEMENT INC., -OWNER : ORDER NO. CDR 26,795
PETITIONER : NEIL SALZMAN-TENANT
ORDER AND OPINION
REMANDING PROCEEDING FOR FURTHER PROCESSING
On November 26, 1986, the above-named petitioner-owner filed a
Petition for Administrative Review against an order issued on
November 20, 1986 by the Rent Administrator, 10 Columbus Circle,
New York, New York concerning the housing accommodation known as
apartment 7, 180 Pinehurst Avenue, New York, New York wherein the
Administrator established the legal stabilization rent and directed
the refund of overcharges of $1,746.12 inclusive of excess security
and interest on the overcharge collected on or after April 1, 1984.
The Commissioner notes that this proceeding was commenced prior to
April 1, 1984. Sections 2526.1(a)(4) and 2521.1(d) of the Rent
Stabilization Code (effective May 1, 1987) governing rent
overcharge and fair market rent proceedings 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, 1987.
The Commissioner has reviewed all of the evidence in the record and
has carefully considered that portion of the evidence relevant to
the issues raised in the administrative appeal.
The tenant (Neil Salzman) initiated this proceeding on March 31,
1984 by filing a rent overcharge complaint with the former New York
City Conciliation and Appeals Board (CAB). The tenant stated that
he had taken occupancy of the subject apartment pursuant to a three
year lease commencing April 15, 1975.
DOC. NO. AK 510570-RO
A copy of the complaint along with a request for a rent history of
the subject apartment from its base date was served on the owner.
DOC. NO. AK 510570-RO
In response, the owner, stating that the subject apartment was
decontrolled on February 25, 1975, submitted a rent history and
copies of leases in effect beginning with April 15, 1975, the
tenant's first lease. The owner also submitted a copy of a letter
to the tenant in which the owner indicated that the decontrolled
status of the apartment was established under Docket No. 2C22488.
In response to a Division request for records to establish the base
date, the owner stated that it was unable to produce the requested
records because the mortgagee was in possession of the subject
property and did not make the documents available when the building
Due to the owner's failure to submit a complete rental history, the
Administrator applied Section 42A default procedures to establish
the legal stabilization rent at $347.88 as of April 1, 1983 through
March 31, 1986 and directed the owner to refund an overcharge
amounting to $1,746.12 inclusive of excess security and interest.
In its appeal, the owner requests that the Administrator's order be
reversed. The owner contends that the Division was irresponsible
in not reviewing its own records. Had the Division reviewed its
records, to wit Docket #2C22488, it would have found pertinent
information relating to the subject apartment's decontrol status
and would not have found an overcharge. The owner stated it had
been unable to get the necessary records because the decontrol
order had been filed by the mortgagee in possession who had not
transferred the documentation to the subsequent purchaser.
After careful consideration, the Commissioner is of the opinion
that this proceeding should be remanded for further processing.
The Emergency Tenant Protection Act gave certain tenants of
decontrolled apartments the right to challenge their initial rents.
A tenant whose apartment was subject to rent control and became
subject to the Rent Stabilization Law as a result of a vacancy
occurring after June 30, 1974 has the right to file this challenge
known as a Fair Market Rent Appeal. Such appeal must be filed by
an eligible tenant (usually the first stabilized tenant) within 90
days of receipt of the notice of initial legal regulated rent (DC-2
In the instant case, the owner alleges that information regarding
DOC. NO. AK 510570-RO
the decontrol of the subject apartment is in the Division's records
and would show there was no overcharge. A search of the Division's
records reveals that the current tenant filed a complaint under
Docket No. 2C 22488 in January 1976 in which he asserted he was the
first stabilized tenant but had not been given the notices to
enable him to challenge the initial leagal regulated rent.
There is no evidence in the record to indicate that the tenant had
the opportunity to file a challenge to the initial rent.
Accordingly, the Commissioner finds that the tenant's overcharge
complaint should be regarded as a Fair Market Rent Appeal.
THEREFORE, in accordance with the Rent Stabilization Law and Code,
ORDERED, that this petition be, and the same hereby is, remanded
for further processing in accordance with this order and opinion.
The automatic stay of so much of the Rent Administrator's order as
directed a refund is hereby continued until a new order is issued
upon remand. However, the Administrator's determination as to the
rent is not stayed and shall remain in effect, except for any
adjustment pursuant to lease renewals, until the Administrator
issues a new Order upon remand.