ARL 06746 K
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
------------------------------------X SJR No. 2707
IN THE MATTER OF THE ADMINISTRATIVE : ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO. ARL 06746 K
: DISTRICT RENT OFFICE
Arthur Wiener/Sherry Realty, DOCKET NO. K 3106967 R
TENANT: Volko Zitser
PETITIONER :
------------------------------------X
ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
This order and opinion is issued after an Order of the Supreme
Court, Kings County, Justice Jerome Cohen, dated April 28, 1988,
which ordered a remand of an Article 78 proceeding directing the
Division to reconsider its former Order and Opinion issued on
August 31, 1987 upon which the Court proceeding was based.
On November 18, 1985, the above-named petitioner-owner filed a
Petition for Administrative Review against an order issued on
November 6, 1985, by the Rent Administrator, 2 World Trade Center,
New York, New York, concerning the housing accommodations known as
260 Ocean Parkway, Brooklyn, New York, Apartment No. 6K, wherein
the Administrator determined that the owner had overcharged the
tenant.
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.
The issue herein is whether the Rent Administrator's order was
warranted.
This proceeding was originally commenced by the filing on March 8,
1984 of a rent overcharge complaint by the tenant.
In answer to the complaint, the owner stated in substance that the
complaint should be dismissed as untimely since the tenant had been
served with a DC-2 form on August 14, 1982. A copy of said form
which was submitted by the owner along with proof of service on the
tenant indicated that the subject apartment had been vacancy
decontrolled in August 1974. In the Article 78 proceeding and in
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a supplementary answer, the owner stated that the Division's
records would confirm that the subject apartment had been subject
to rent control until the previous tenant (R. Padob) vacated. The
owner submitted a copy of the apartment's rent control registration
card which indicates that the apartment continued to be subject to
rent control in March 1980. The owner submitted also a copy of the
rent ledger for 1980 which shows that the previous rent controlled
tenant paid rent through May 1980 and that the complainant first
paid rent in June 1980.
In Order Number K 3106967 R, the Administrator determined that due
to the owner's failure to submit a complete rental history, the
tenant had been overcharged in the amount of $8,674.19 inclusive of
excess security and treble damages on the overcharge occurring on
and after April 1, 1984 and directed the owner to refund such
overcharge to the tenant as well as to reduce the rent.
In this petition, the owner contends that the Administrator erred
in applying section 42A procedures as he had not defaulted, The
owner asserts that the complainant was the first rent stabilized
tenant after vacancy decontrol, a fact confirmable by the
Division's own records, that there was no overcharge, and that the
order should be reversed.
In response, the tenant asserts that the previous tenant (Padob)
who resided in the subject apartment for over fifteen years paid a
lower rent than asserted by the owner and that the Administrator's
order should be confirmed.
The Commissioner is of the opinion that this petition should be
granted.
A review of the record, including the Division's rent control
records for the subject apartment, discloses that the apartment was
rent controlled at least through March 1980. The Commissioner
notes that the owner did not file a report of statutory decontrol
(which would have specified the date of decontrol) when the rent
controlled tenant vacated and that the DC-2 form served on the
tenant contained an erroneous decontrol date. However, an
extrapolation of the total evidence, the rent control records, the
1980 rent ledger, the tenant's confirmation of the prior tenant's
name, establishes that the apartment was vacancy decontrolled some
time during May 1980. If the complaint were to be considered as
a fair market rent appeal, it would be found that the rent
collected does not exceed the fair market rent for the subject
apartment in that the 1978-79 maximum base rent(MBR) for the
subject apartment was $319.74 and pursuant to special guidelines 11
in effect when the tenant first occupied the subject apartment in
June 1980, the owner was entitled to charge a fair market rent of
$383.69 - 20% above $319.74(1978-79 MBR). Since the tenant was
initially charged $375.00, a fair market rent appeal would be
dismissed. Further, the record shows that the tenant was not
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overcharged during the period from June 1, 1980 through October 31,
1985 encompossed by the Rent Administrator's order since the owner
took only lawful guideline increase during this period.
If the owner has already complied ith the Administrator's order and
there are arrears due to the owner as a result of this
determination, the owner is directed to allow the tenant to pay off
the arrears in twenty four equal Monthly installments. Should the
tenant vacate after the issuance of this order, or have previously
vacated, said arrears shall be payable immediately.
THEREFORE, in accordance with the Rent Stabilization Law and Code,
it is
ORDERED, that this petition be, and the same hereby is, granted
and, that the Rent Administrator's order be, and the same hereby
is, revoked.
ISSUED:
JOSEPH A. D'AGOSTA
Acting Deputy Commissioner
ARL 06746 K
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