STATE OF NEW YORK
DIVISION OF HOUSING AND COMMUNITY RENEWAL
OFFICE OF RENT ADMINISTRATION
92-31 UNION HALL STREET
JAMAICA, NEW YORK 11433
IN THE MATTER OF THE ADMINISTRATIVE : ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO. ARL12628K
: DISTRICT RENT OFFICE
Morris Rokowsky, DOCKET NO. K3104068R
TENANT: Rhoda Kaye
ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
AND REVOKING RENT ADMINISTRATOR'S ORDER
On August 18, 1986, the above-named petitioner-owner filed a Petition
for Administrative Review against an order issued on August 11, 1986, by
the Rent Administrator concerning the housing accommodations known as
1401 Ocean Avenue, Brooklyn, New York, Apartment No. 3H, wherein the
Administrator determined that the tenant had been overcharged.
The issue under appeal is whether the Administrator's order was
The Commissioner notes that this proceeding was filed 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, and this proceeding is being determined in accordance
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 by the filing of a rent
overcharge complaint by the tenant on March 31, 1984. The tenant took
occupancy on May 1, 1980 pursuant to a lease commencing May 1, 1980 and
terminating April 30, 1983.
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 provided the rental history and
copies of all requested leases for the subject apartment.
In Order Number CDR 21,034, the Rent Administrator determined that the
owner had collected an overcharge from the tenant totalling $2,492.52
including excess security, through April 30, 1986. The owner was
directed to roll back the rent to the lawful stabilized amount and to
make full refunds to the tenant of all overcharges, plus interest on all
overcharges collected on or after April 1, 1984.
In his petition, the owner submits his own calculations in a rental
history chart, plus Guidelines and vacancy increases (where applicable)
for each lease period. The calculations therein result in no
The tenant did not respond to this petition.
The Commissioner is of the opinion that this petition should be granted
and the Administrator's order finding an overcharge should be revoked.
Section 2522.5(f) of the current Rent Stabilization Code states, in
Where the tenant vacates prior to the expiration of the term of the
lease, and the housing accommodation is rented to a new tenant pursuant
to a lease commencing during the same guidelines period as the prior
lease, the rental provided in the new lease shall: (1) be in accordance
with and at the guidelines rate of rent adjustment applicable to the new
lease; and (2) shall be computed upon the legal regulated rent charged
and paid on the last day of the immediately preceding guidelines year:
and (3) may include such other rent increases as are authorized pursuant
to Section 2522.4 of this part.
The Commissioner find that the owner's calculations are incorrect,
insofar as the rule stated above was not taken into account. Both the
renewal lease for the prior tenant (Dublin) commencing March 1, 1980 and
the complainant's vacancy lease commencing May 1, 1980 began during
Guideline 11. Therefore the lawful rent for the May 1, 1980 lease must
be based on the lawful June 30, 1979 rent. The Commissioner finds the
lawful June 30, 1979 rent to be $337.00 (not $387.55 as stated by the
owner). This includes a 3.5% electrical inclusion allowance omitted by
the Administrator. The owner's calculations also fail to include the
$8.00 fuel surcharge which the tenant indicated she was charged until
the end of her initial lease.
The lawful stabilized rent is recalculated on the attached rental
history chart which is hereby made a part of this order. As indicated
on the attached chart, the tenant was not overcharged.
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 Rent Stabilization Law and Code, it is
ORDERED, that this petition for administrative review be, and the same
hereby is, granted, that the order of the Rent Administrator be, and the
same hereby is, revoked, and it is found that no rent overcharge
JOSEPH A. D'AGOSTA