ARL 12403-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
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IN THE MATTER OF THE ADMINISTRATIVE : ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO. ARL 12403-K
: DISTRICT RENT OFFICE
Windsor Place Corp. DOCKET NO. K 3103269-R
TENANT: Allan Gettleman
PETITIONER :
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ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
On August 5, 1986, the above-named petitioner filed a Petition
for Administrative Review against an order issued on July 21,
1986, by the Rent Administrator, concerning the housing
accommodations known as 150 Remsen Street, Brooklyn, New York,
Apartment No. 63, wherein the Rent Administrator determined that
the owner had overcharged the tenant.
The Administrative Appeal is being determined pursuant to the
provisions of Section 2526.1 of the current Rent Stabilization
Code.
The issue herein is whether the Rent Administrator's order was
warranted.
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.
This proceeding was originally commenced by the filing in March,
1984 of a rent overcharge complaint by the tenant, who took
occupancy on November 15, 1975 under a lease commencing November
15, 1975 and expiring November 14, 1977, at a monthly rent of
$215.00. The owner was served with a copy of the complaint and
was requested to submit rent records to prove the lawfulness of
the rent being charged. In answer to the complaint, the owner
stated that no overcharge existed and that the owner purchased
the building in 1983 and was furnished leases from November 1975.
The owner submitted a rental history from November 15, 1976.
In Order Number 19,944, the Rent Administrator determined that
due to the owner's failure to submit a complete rental history,
the tenant had been overcharged in the amount of $4,267.12
including interest, 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 alleges, in substance, that it had
responded to the tenant's complaint; that the Administrator's
calculations were in error; and that the choice of methods to
ARL 12403-K
determine the "fair market" rent was unfair, resulting in the
finding of overcharge.
The tenant did not respond to the petition.
The Commissioner is of the opinion that this petition should be
granted.
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) and to produce such
records to the DHCR upon demand.
Section 26-516 of the 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 to
produce rent records for more than four (4) years prior to the
most recent registration, and concomitantly, established a four
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 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 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 rights 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 the 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. Mgmt. v.
Eimicke, 148 A.D.2d 610. 539 N.Y.S. 2d 667 (App. Div. 2d Dept.,
1989). motion for leave to reargue or for leave to appeal to the
Court of Appeals denied ( App. Div. 2d Dept., 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 DHCR could not require an
owner to produce more than four 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
ARL 12403-K
A.D.2d 185, 544 N.Y.S.2d 331 (App. Div. 1st Dept. 1989), has
issued a decision in direct conflict with the holding in 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 Second Department, the DHCR is constrained to follow the JRD
decision in determining the tenant's overcharge complaint,
limiting the requirement for rent records to April 1, 1980. In
this case, an examination of the rental history from April 1,
1980 through October 14, 1985 discloses that the lawful
stabilized rents were charged, and that no overcharge occurred.
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 shall be permitted to pay off
the arrears in twenty four equal monthly installments. Should
the tenant vacate after the issuance of this order or have
already vacated, said arrears shall be payable immediately.
THEREFORE, in accordance with the Appellate Division ruling in
JRD, it is
ORDERED, that this petition for administrative review be, and the
same hereby is, granted and that the order of the Rent
Administrator be, and the same hereby is, revoked, and it is
determined that the tenant was not overcharged.
ISSUED:
JOSEPH A. D'AGOSTA
Acting Deputy Commissioner
ARL 12403-K
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