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.:AL 1103110-RO
PIKI ASSOCIATES RENT ADMINISTRATOR'S
DOCKET NO.:Q 3120956-R
ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW IN PART
On December 9, 1986, the above-named petitioner-owner filed a Petition for
Administrative Review against an order issued on November 5, 1986, by a
Rent Administrator, concerning the housing accommodations known as 33-75
76th Street, Jackson Heights, New York, Apartment No. 6C, wherein the Rent
Administrator determined that the owner had overcharged the tenant.
Subsequent thereto, the petitioner owner filed a petition in the Supreme
Court pursuant to Article 78 of the Civil Practice Law and Rules requesting
that the "deemed denial" of the petitioner's administrative appeal be
annulled. The proceeding was then remitted to the DHCR for a determination
of the petitioner's appeal.
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 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 March 28, 1984 of
a rent overcharge complaint by the tenant who stated in substance tht the
owner had not provided him with a lease history the tenant had assumed
occupancy on April 30, 1975 pursuant to a 3 year lease at a rent of $235.00
per month. The owner was served with the complaint, but did not respond.
In Order Number Q 3120956-R, 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 $5,888.90, including treble damages, and
directed the owner to refund such overcharge to the tenant as well as to
reduce the rent.
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 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.
DOCKET NUMBER: AL 110310-RO
Section 26-516 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.
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. Therefore, the
Rent Administrator's order fining a rent overcharge must be revoked.
DOCKET NUMBER: AL 110310-RO
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 24 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
ORDERED, that this petition for administrative review be, and the same
hereby is, granted that the order of the Rent Administrator be, and the
same hereby is, revoked, and it is found that no rent overcharge occurred.
JOSEPH A. D'AGOSTA
Acting Deputy Commissioner