DOCKET NUMBER: AL 210167-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.: AL 210167-RT
DRO DOCKET NO.: K 3105206-R
ROSANNE PARISI PETITIONER :
ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On December 16, 1986, the above-named petitioner-tenant filed a Petition
for Administrative Review of an order issued on November 12, 1986 by the
District Rent Administrator, 10 Columbus Circle, New York, New York,
concerning housing accommodations known as Apartment 1L at 2375 Ocean
Avenue, Brooklyn, New York, wherein the District Rent Administrator
determined that the tenant was not overcharged.
The Commissioner notes that this proceeding was initiated 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 record relevant to the issue
raised by the administrative appeal.
This proceeding was originally commenced by the filing of a rent
overcharge complaint by the tenant with the New York City Conciliation and
Appeals Board, one of the predecessor agencies to the DHCR. The tenant
took occupancy pursuant to a lease commencing March 15, 1979 and expiring
March 31, 1981 at a monthly rent of $260.00.
In answer, the owner (Treitel Management Co.) asserted that the apartment
was occupied a superintendent prior to the tenant's occupancy, that the
owner was entitled to charge a first rent after the superintendent vacated
and that the tenant was not overcharge.
In the Order Number CDR 26,447, the Administrator determined that the
subject apartment was occupied a superintendent prior to the tenant's
occupancy, that the base date for the subject apartment was March 15, 1979
and that the tenant was not overcharged.
In this petition, the tenant asserts that she did not receive a copy of
the owner's answer to her complaint and was not afforded an opportunity to
reply thereto. The tenant questions the calculation of her initial rent
by the owner.
The Commissioner is of the opinion that this petition should be denied.
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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) to date and to produce such records to the DHCR upon remand.
Section 26-516 of 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 produce rent records for more than 4
years prior to the most recent registration, and, concomitantly,
established a 4 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 files so as not to deprive such tenants of their 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.S. 22d 455 (1985).
However, it has recently been held in the case of J.R.D. Mgt. v. Eimicke,
148 A.D.2d 610, 539 N.Y.S.2d 667 (App. Div. 2d Dep't 1989), motion for
leave to reargue or for leave to appeal to the Court of Appeals denied
(App. Div. 2d Dep't, N.Y.L.J., June 28, 1989 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
4 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 Dep't 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.
Since the allegations raised by the owner regarding the rental history of
the subject apartment prior to the occupancy of the subject tenant are no
longer relevant in determining the tenant's lawful stabilized rent, the
tenant cannot be said to have been prejudiced by the Administrator's
failure to serve the tenant with a copy of said answer and afford the
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tenant an opportunity to respond thereto.
Pursuant to the JRD decision, the rent of $260.00 paid by the tenant on
April 1, 1980 is the base rent for the subject apartment. The
Commissioner therefore finds that the Administrator properly utilized the
tenant's April 1, 1980 rent of $260.00 as the base rent for the subject