DOCKET NO.: ARL 12679 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 12679 K
JOSEPH SHAMAH DISTRICT RENT ORDER
DOCKET NO.: K 3102663 R
PETITIONER
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ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
On August 8, 1986 the above-named petitioner-owner filed a
Petition for Administrative Review against an order issued on
July 11, 1986 by the Rent Administrator, 92-31 Union Hall Street,
Jamaica, NY concerning housing accommodations known as 1911
Dorchester Road, Brooklyn, NY, Apartment 2H.
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 tenant
filing a complaint of rent overcharge. The tenant took occupancy
pursuant to a lease commencing June 1, 1977 at a monthly rent of
$235.00.
In Order Number CDR 19,333, the Rent Administrator
established the lawful stabilized rent based on the prior owner's
failure to submit a complete rental history for the subject
apartment and directed a refund of $4,133.47, including interest
on overcharges collected after April 1, 1984, to the tenant.
In this petition, the owner contends, in substance that it a
complete rental history was not available because the subject
premises was purchased by the prior owner in a foreclosure
proceeding. With the petition, the owner submits rent records
for the subject apartment dating from June 1, 1977.
In response to the petition, the tenant asserts, in
substance, that the Rent Administrator's order should be
affirmed.
The Commissioner is of the opinion that this petition should
be granted.
DOCKET NO.: ARL 12679 K
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 years prior to the most
recent registration, and concomitantly, established a 4 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(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 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 Appeals in 61 Jane Street
Associated 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.
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 Dep't, 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 4 years of rent records.
Since the issuance of the decision in JRD, the Appellate
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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 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 record discloses that a
full rental history from April 1, 1980 is in evidence. Based
thereon, the Commissioner notes that the lawful stabilization
rents for the subject apartment are $235.00 per month from June
1, 1977 to May 31, 1980; $270.25 per month from June 1, 1980 to
May 31, 1983; $331.16 per month from June 1, 1985 to May 31,
1986. The record discloses that the tenant was charged rent at
above amounts. Accordingly, there was not rent overcharge and
the Rent Administrator's order to that effect must therefore be
revoked.
The Commissioner notes that the record indicates that the
subject tenant has vacated the subject premises. Accordingly, 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, 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 the Rent Administrator's order be, and the same
hereby is, revoked in its entirety.
ISSUED:
ELLIOT SANDER
Deputy Commissioner
DOCKET NO.: ARL 12679 K
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