ADM. REVIEW DOCKET NO.: AL 410447 RO
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 410447 RO
D.R.O. ORDER NO.:
: CDR # 26,780
D.R.O. DOCKET NO.:
L-3116161-R
259 WEST 15TH ASSOCIATES Tenants: Margery Fine and
Rae Tattenbaum
PETITIONER :
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On December 17, 1986, the above named petitioner-owner filed
a Petition for Administrative Review against an order issued on
November 20, 1986, by the Rent Administrator at 10 Columbus
Circle, New York, New York, concerning housing accommodations
known as Apartment No. 4F at 259 West 15th Street, New York, New
York, wherein the Administrator established the stabilized rent
and directed the owner to refund $5,713.39, including interest
from April 1, 1984.
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 issues raised by the administrative appeal.
This proceeding was originally commenced on March 23, 1984,
by the filing of a complaint of rent overcharge with the New York
City Conciliation and Appeals Board (CAB, the agency formerly
charged with enforcing the Rent Stabilization Law) by the tenants.
The owner failed to submit a rental history from the base
date.
On the chart attached to and made a part of the order, the
Administrator established the stabilized rent.
ADM. REVIEW DOCKET NO.: AL 410447 RO
In its Petition, the owner contends that the Administrator
erred on the rent calculation chart attached to the order by
failing to acknowledge that the owner had submitted all rental
history data from the time the tenants took occupancy under a
lease which commenced on May 1, 1979 and expired on April 30,
1980. The owner also submits a copy of a rent registration card
that shows that the maximum rent under rent control on February 9,
1972 was $400.00 reduced by $25.40 because of a real property tax
abatement the owner had obtained. The owner argues that since the
rent controlled rent in 1972 was $400.00 and the tenants' initial
rent in 1979 was $488.00, the Administrator's finding of an
overcharge is arbitrary and capricious.
The tenants' answer opposing the Petition asks, in substance,
that the order of the Rent Administrator be affirmed, and that the
Petition be denied.
The Commissioner is of the opinion that the Petition should
be denied.
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 demand.
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 year limitation on the
calculation of rent overcharges.
It had 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
ovecharge 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 4 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 (1985).
However, it has recently been held in the case of J.R.D.
ADM. REVIEW DOCKET NO.: AL 410447 RO
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 Dept's, 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. 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 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 First Department, the DHCR is not constrained to
follow the JRD decision in determining the tenant's overcharge
complaint, limiting the requirement for rent records to April 1,
1980. Instead, following the Lavanant decision, the DHCR
determines cases such as the instant one in accordance with the
default procedures established under Section 42A, of the Code in
effect on April 30, 1987,as said procedures were implemented at
the time the complaint herein was filed.
The Commissioner finds that the owner has failed to establish
a base date for the calculation of the tenants' stabilized rent.
Therefore, the Commissioner believes that the Administrator
properly held the owner in default when the only rental history
data the owner submitted related to the tenants' occupancy.
The Commissioner notes that the order below may, upon the
expiration of the period in which the owner may institute a
proceeding pursuant to Article Seventy-eight of the Civil Practice
Law and Rules, be filed and enforced by the tenants in the same
manner as a judgment or not in excess of twenty percent thereof
per month may be offset against any rent thereafter due the owner.
THEREFORE, pursuant to the Rent Stabilization Law and Code,
it is
ORDERED, that this Petition be, and the same hereby is,
denied.
ISSUED:
ADM. REVIEW DOCKET NO.: AL 410447 RO
ELLIOT SANDER
Deputy Commissioner
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