DOCKET NUMBER: AL-210770-RO
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 NUMBER: AL-210770-RO
MELVIN ZUCKERMAN, : D.R.O. DOCKET NO. K 3103805-R
ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW IN PART
The above-named petitioner-owner filed a Petition for
Administrative Review against an order issued on September 15,
1986 by the Rent Administrator, 10 Columbus Circle, New York, New
York, concerning housing accommodations known as 222 Lenox Road,
Apartment No. 25, Brooklyn, New York.
The tenant, Beverly Henry, who took occupancy on February 10,
1983 at a rent of $345.00 per month, filed a complaint of
overcharge on March 10, 1984.
The order of the Rent Administrator appealed herein established
an initial rent of $248.00 pursuant to default procedures based
on the owner's failure to submit a complete rental history and
found total overcharges of $4,023.65, including interest, through
May 1, 1986.
The petitioner, among other things, has urged throughout this
proceeding that he is a receiver appointed in a federal mortgage
foreclosure proceeding as of July 1, 1983 and has no prior
The Commissioner is of the opinion that the petition should be
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 Division of Housing and Community Renewal
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
DOCKET NUMBER: AL-210770-RO
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
file 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 right 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 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.2d 898, 493 N.Y.S.2d 455
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, 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 Division of Housing
and Community Renewal 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 Division of Housing and Community Renewal 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 Division of Housing and Community
Renewal is constrained to follow the JRD decision in determining
the tenant's overcharge complaint, limiting the requirement for
rent records to April 1, 1980.
The instant record does contain a rental history going back prior
to April 1, 1980. The owner cannot, therefore, be held to have
defaulted in accord with the JRD ruling.
Rents have been recalculated on the chart attached and made part
hereof. No overcharge is found to exist.
DOCKET NUMBER: AL-210770-RO
If the owner has already complied with the Administrator's order,
the tenants in occupancy may pay any arrears resulting herefrom
in 36 equal monthly installments.
THEREFORE, in accordance with the Rent Stabilization Law and
Code, it is
ORDERED, that this petition be, and the same hereby is, granted
and the order of the Rent Administrator be, and the same hereby
ADMINISTRATIVE REVIEW BUREAU
ARB Docket No.: AL-210770-RO
DRO Docket No/Order No.: K 3103805-R
Tenant(s): BEVERLY HENRY
Owner: MELVIN ZUCKERMAN
Code Section: 9 NYCRR 2522.6
Premises: 222 LENOX ROAD, APARTMENT 25, BROOKLYN, NY
ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
Pre April 1, 1984 overcharge complaint-default.
Administrator's order revoked in accord with JRD. Petitioner is a
receiver in federal mortgage foreclosure and alleges that he has no
records prior to appointment.
Mailed copies of Order and Determination to:
Date: : by