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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.: AL 110128 RO
DRO DOCKET NO.: Q 3120077 R
HEMELEY SPEAR,
TENANT: ANN HERMAN
PETITIONER
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ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
IN PART
On December 2, 1986, the above-named owner filed a Petition for
Administrative Review of an Order issued on November 13, 1986 by
the Rent Administrator concerning the housing accommodations
known as 211-02 73rd Avenue, Bayside, New York, Apartment No. 11
2K, 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 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 on
December 18, 1983 of a rent overcharge complaint by the tenant.
In answer to the complaint, the owner stated in substance that a
Hardship Rent Increase was granted the owner in March, 1979 and
submitted a complete rental history from the base date.
In Order Number Q-3120077-R, the Rent Administrator established
the lawful stabilization rent as $310.96 effective for the lease
term July 1, 1982 through June 30, 1985, determined that the
tenant had been overcharged, and directed a refund to the tenant
of $2,033.26 including interest on that portion of the
overcharge collected on and after April 1, 1984.
In this petition, the owner alleges in substance that the Rent
Administrator miscalculated the lawful stabilization rent for the
July 1, 1976 three year renewal lease to the extent that a 3.5
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percent allowance for electrical inclusion and a charge for
current for the tenant's air conditioner were not factored into
said rent. The owner further contends that the Administrator
failed to include a Hardship Rent Increase in the calculation of
the lawful stabilization rent which, the owner states, was
reflected in the tenant's March 1979 rent.
The Commissioner is of the opinion that this petition should be
granted in part.
An examination of the records in this case discloses that in fact
a 3.5 percent allowance for electrical inclusion and a $6.16
charge for current for the tenant's air conditioner were not
included in the Administrator's calculations pursuant to the
lease commencing July 1, 1976 and expiring June 30, 1979.
In addition, the record discloses that the owner was not credited
with the hardship increase to which it was entitled. However it
is noted that effective December 1983 pursuant to CAB Opinion No.
12491 the tenant's rent was reduced due to the change from
electrical inclusion to electrical exclusion and that a small
rent overcharge remains due to the owner's failure to eliminate
all the electrical inclusion allowances it had previously taken.
Taking the above factors into account, the Commissioner has
recalculated the lawful stabilization rents and amount of rent
overcharge for the subject apartment, including interest on the
overcharge occurring on and after April 1, 1984. The lawful
stabilization rents and amount of rent overcharge are set forth
on the amended rent calculation chart attached hereto and made a
part hereof.
Because this determination concerns lawful rents only through
June 30, 1985, the owner is cautioned to adjust subsequent rents
to an amount no greater than that determined by this order plus
any lawful increases, and to register any adjusted rents with
this Order and Opinion being given as the explanation for the
adjustment.
Upon the expiration of the period in which the landlord may
institute a proceeding pursuant to Article 78 of the Civil
Practice Law and Rules, the tenant may offset against any rent
thereafter due the owner not in excess of twenty per cent per
month of the remaining overcharge.
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 provisions of the Rent
Stabilization Law and Code, it is
ORDERED, that this petition for administrative review be, and the
same hereby is, granted in part, and, that the Order of the Rent
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Administrator be, and the same hereby is, modified in accordance
with this Order and Opinion. The lawful stabilization rents and
the amount of the rent overcharge are established on the
attached chart which is fully made a part of this Order. The
amount of the rent overcharge through June 30, 1985 is $248.49.
ISSUED
JOSEPH A. D'AGOSTA
Acting Deputy Commissioner
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