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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.: AL410661RO
Weinreb Management, DRO DOCKET NO.: 047588G
TENANT: Jonathan Dembrow
PETITIONER
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ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
IN PART
On December 29, 1986, the above-named owner filed a petition for
administrative review of an order issued on December 2, 1986, by a
District Rent Administrator concerning the housing accommodations known
as 350 Central Park West, Apartment No. 11H, New York, New York wherein
the Administrator determined that the owner had overcharged the tenant.
The Commissioner notes that this proceeding was filed prior to April 1,
1984. Section 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 instituted by the filing of an overcharge complaint
with the New York City Conciliation and Appeals Board (CAB).
On April 1, 1984, responsibility for the administration of rent
stabilization in New York City was transferred to the New York State
Division of Housing and Community Renewal (DHCR).
In Order Number 27,595, the Rent Administrator determined that due to
the owner's failure to submit a complete rental history, the lawful
stabilization rent as of August 1, 1976 was $530.00 per month and that
the tenant had been overcharged $3,065.95 through July 31, 1979.
On December 29, 1986, the owner filed a petition for administrative
review.
Subsequently, the parties were advised that the DHCR was unable to
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locate the Administrative Review file or the Rent Administrator's file
in this proceeding. Both parties were requested to submit copies of all
papers connected with this proceeding in order to assist the agency's
reconstruction of the files. Both parties replied to these requests and
both replies were forwarded to the opposing party.
In its petition for administrative review, the owner alleged that the
last notice it received in this proceeding was a notice from the CAB
advising the owner that this overcharge proceeding had been given a
docket number. The owner alleges that it received no further notice
and, as such, had not been afforded an opportunity to submit a rental
history. Accordingly, the owner contends that the Commissioner is
required to accept and consider the rental history now submitted for the
first time with the administrative appeal. In addition, the owner
asserts that he took ownership on January 2, 1979 from a prior owner
(Argo Corporation) and that the Administrator erred by not allocating
overcharges between the owners. With his petition for administrative
review the owner submitted a rental history of the subject apartment
including leases from July 1, 1973 through August 31, 1987.
In his answer, the tenant urges that the Administrator's findings be
affirmed. However, the tenant requests, as well, that these findings be
updated beyond July 31, 1979 through the date of the Administrator's
order and that the penalty of treble damages be assessed on those
overcharges occurring after April 1, 1984. Further, the tenant asserts
that the current owner should be held responsible for all overcharges
including those collected by a prior owner. Also, the tenant asserts
that the owner's petition for administrative review should be rejected
because the owner had failed to forward its pleadings to the tenant.
Finally, the tenant requests attorney's fees and submits a bill for
attorney's fees with his answer.
The Commissioner is of the opinion that this petition for administrative
review should be granted in part.
The Commissioner finds that all of the pleadings and documents submitted
by the parties to assist the Commissioner in his efforts to reconstruct
the files must be fully considered in this order and opinion, including
the complete lease history for the subject apartment submitted for the
first time with the petition for administrative review. The owner's
assertion that he received no notice in the proceeding below must be
granted because the record contains insufficient evidence to contradict
this assertion. Accordingly, the Commissioner is constrained to accept
the owner's rental documentation for the first time at the
administrative appeal level.
The lawful stabilization rent has been recalculated on the attached rent
calculation chart through the date of the issuance of the
Administrator's order based on the owner's rental documentation.
Further, the Commissioner finds the owner's assertion that the total
overcharges must be allocated to be correct. When an overcharge
complaint was filed before April 1, 1984 and the overcharges were
collected by a prior owner before April 1, 1984, each owner is liable
only for that portion of the overcharges actually collected. As such,
in this case, the petitioner-owner is liable only for those overcharges
occurring after January 2, 1979.
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Further, the Commissioner will not grant the request for attorney's fees
made by the tenant in his answer to the petition for administrative
review. The Commissioner is of the opinion that this additional
penalty is not warranted in this case.
Since the tenant did not file a petition for administrative review, the
commissioner will assess interest only and not treble damages on all
overcharges occurring after April 1, 1984. In addition, the record
contains no indication that the owner was properly notified of the
possible assessment of treble damages.
The tenant, in his answer, asserted that the petition for administrative
review must be dismissed because the owner failed to furnish the tenant
with complete copies of the petition for administrative review. The
Commissioner finds that this failure by the petitioner-owner does not
result in a incurable due process error. Full copies of the petition
for administrative review have been forwarded to the tenant and his
attorney by the Commissioner, and they have been given a complete
opportunity to respond. Accordingly, all of the tenant's due process
rights have been protected.
Therefore, as shown on the attached calculation chart, the total
overcharges are $5,768.27. However, the petitioner-owner is liable only
for those overcharges occurring since January 2, 1979, or $4,218.71.
The Commissioner has determined in this Order and Opinion that the
owner, Weinreb Management, collected overcharges of $4,218.71. This
Order may, upon expiration of the period for seeking review of this
Order and Opinion pursuant to Article Seventy-eight of the Civil
Practice Law and Rules, be filed and enforced as a judgment or not in
excess of twenty percent per month of the overcharge may be offset
against any rent thereafter due the owner. Where the tenant credits the
overcharge, the tenant may add to the overcharge, or where the tenant
files this Order as a judgment, the County Clerk may add to the
overcharge, interest at the rate of the Civil Practice Law and Rules
from the issuance date of the Rent Administrator's Order to the issuance
date of the Commissioner's order.
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.
The owner is directed to reflect the findings and determinations made in
this order on all future registration statements, including those for
the current year if not already filed, citing this order as the basis
for the change. Registration statements already on file, however,
should not be amended to reflect the findings and determinations made in
this order.
This order and opinion is issued without prejudice to the tenant's right
to proceed against any prior owner for that portion of the overcharges
for which said prior owner may be liable.
THEREFORE, in accordance with the Rent Stabilization Law and Code, it is
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ORDERED, that this petition for administrative review be, and the same
herby is, granted in part, and the Administrator's order be, and the
same hereby is, modified in accordance with this order and opinion.
ISSUED:
JOSEPH A. D'AGOSTA
Deputy Commisioner
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