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.: ARL 12684-K
MELVIN ZUCKERMAN, DRO DOCKET NO.: K 3103108-R
ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW IN PART
The above-named petitioner filed a Petition for Administrative Review
against an order issued on July 23, 1986, by the Rent Administrator of the
Columbus Circle District Rent Office, concerning the housing
accommodations known as 222 Lenox Road, Apartment No. 30 Brooklyn.
The tenants, Ola and Frank Fischer, who took occupancy on about September
19, 1978 at a rent of $385.00 per month, filed a complaint of overcharge
on March 29, 1984.
The herein appealed order of the Rent Administration established an
initial rent $339.21 pursuant to a default procedure based on the owner's
failure to submit a complete rental history and found total overcharges
of $7860.77, including interest, though December 31, 1985.
The petitioner, among other things, has urged throughout this proceeding
that he is a receiver appointed in a federal mortgage foreclosure
proceeding as of July 1, 1983 and has no prior records.
The Commissioner is of the opinion that the petition should be granted in
Section 42A of the former Rent Stabilization Code requires that an owner
retain complete records for each stabilized apartment in effect form 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 2526.1(a)(4) of the current Rent
DOCKET NUMBER: ARL 12684-K
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 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 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. 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 rargue
denied (Court of Appeals, N.Y.L.J., Feb. 15, 1990, p. 25, 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 Division, First
Department, in the case of Lavanant v. DHCR, 148 A.D.2d 185, 544 N.Y.S.2d
332 (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.
The instant record does contain a rental history going back prior April
30, 1980. The owner cannot, therefore, be held to have defaulted in
accord with the JRD ruling.
Rents and overcharges have been recalculated on the chart attached and
made part hereof.
If the owner has already complied with the Administrator's order, the
tenants in occupancy may pay any arrears resulting herefrom in 24 equal
THEREFORE, pursuant to the Rent Stabilization Law and Code, it is
DOCKET NUMBER: ARL 12684-K
ORDERED, that this petition be, and the same hereby is, granted in part
and that the order of the Rent Administration be, and the same hereby is,
modified in accord herewith.