DOC. NOS.: AL 410030-RT, AL 410031-RT
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 NOS. AL 410030-RT
AL 410031-RT
THOMAS BAUMGARTNER : DISTRICT RENT ADMINISTRATOR'S
- and - : DOCKET NO.: TC-062938-G
ALEXIS GANTRY, PETITIONERS :
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ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
AND REMANDING PROCEEDING
On December 5, 1986, the above-named petitioners each filed a Petition for
Administrative Review against an order issued on October 31, 1986 by the
Rent Administrator, 10 Columbus Circle, New York, New York concerning the
housing accommodation known as Apartment 1RW, 406 West 25th Street, New
York, New York wherein the Administrator determined that there had been an
overcharge and ordered a refund.
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 the evidence in the record and has
carefully considered that portion of the record relevant to the issues
raised by the administrative appeals.
The former tenant, Angelo Rosado, commenced this proceeding on May 25,
1982 by filing an overcharge complaint with the New York City Conciliation
and Appeals Board (CAB), the predecessor of the DHCR, based in part on an
alleged failure by the owner to provide a complete rental history.
The owner, Tint Realty Corporation, was served with a copy of the tenant's
complaint and was requested to submit complete copies of all leases or
rent records pursuant to Section 42A of the Code. The owner was advised
that its failure to provide the requested information would be a default.
DOC. NOS.: AL 410030-RT, AL 410031-RT
The owner failed to interpose an answer or provide a full rental history
for the subject apartment.
In 1982, the CAB adopted procedure to be used to determine an apartment
rent where the owner did not provide a complete rent history of the
apartment. In such cases, the rent is calculated to be the lowest of the
following amounts: 1) the lowest rent in the line; 2) the current tenant's
initial rent minus any allowance for the tenant's initial lease; 3) the
prior tenant's last rent.
In Order Number 25,571, the Rent Administrator determined that the owner
was in default and applied Section 42A default procedures to establish the
lawful stabilization rent, using only method 2 as hereinabove mentioned.
Treble damages were imposed and a refund of $5,906.43, inclusive of treble
damages and excess security, was ordered.
Although neither of the petitioners herein is a party in the proceeding
below, each claims the right to appeal as an aggrieved party. Each of the
petitioners is or was a tenant of the subject accommodation, and each has
filed an overcharge complaint (Baumgartner under docket number AB410264R
and Gantry under docket number L004139R). The tenants contend the final
ruling in this proceeding will be dispositive of the legal rent for the
subject accommodations and of findings of overcharges.
In seeking modification of the Administrator's Order, the petitioners
contend there are inconsistencies between the determination at issue and
prior findings in similar overcharge complaints in the same building.
Questioning the formula used, the petitioners further contend that more
consistent results are obtained if the records of these prior cases are
consulted.
The Commissioner notes that the owner (Tint Realty) received neither the
issued order nor the notice of filing of petition; each was returned to
the Division as undeliverable. The 7A Administrator, Diane Dowling, did
not respond to the petition although afforded the opportunity to do so.
The Commissioner is of the opinion that these petitions should be granted
to the extent of remanding this proceeding for further processing.
Section 2529.1(a) provides in pertinent part that a petition for
administrative review (PAR) may be filed by a party to the proceeding, or
other necessary party where such petition alleges the errors upon which
the order is based.
DOC. NOS.: AL 410030-RT, AL 410031-RT
In the instant case, although the complainant has vacated the subject
premises, the ruling on the complaint will be determinative of the legal
stabilization rent for the subject apartment. These petitioners may be
adversely affected by any error in the ruling. Therefore, the
Commissioner finds that the petitioners each has standing to file a PAR.
Pursuant to the default procedures adopted by the CAB, the Administrator
should have calculated the apartment rent as the lowest of three amounts
cited above. In the instant case, finding both the lowest rent in the
line and the prior tenant's rent not available and relying solely on
method 2, the Administrator established the complainant's legal rent as
$383.47 for the lease period May 1, 1982 through April 30, 1985.
The petitioners submit with the appeal copies of orders, issued by either
the Division or its predecessor, the CAB, on three overcharge complaints
allegedly similar to the instant complaint. The petitioners assert that
each of the concerned housing accommodations is identical to the subject
apartment. In each instance, the Administrator established the legal
stabilized rent at a considerably lesser amount than was established in
the Order at issue.
A review of the record reveals that these orders were issued before the
issuance of the Order in the instant proceeding and that a rent roll of
the stabilized apartments in the subject building was available in
Division Records. Accordingly, the Commissioner finds, error in the
Administrator's reliance on only one of the three methods used in default
procedures and its failure to consider all available information to
establish the legal stabilized rent of the subject accommodation.
THEREFORE, in accordance with the Rent Stabilization Law and Code, it is
ORDERED, that this petition be and the same hereby is granted to the
extent of remanding this proceeding to the Rent Administrator 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 adjustments pursuant to lease renewals,
until the Administrator issues a new Order upon remand.
ISSUED:
ELLIOT SANDER
Deputy Commissioner
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