ART 02239 B
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.: ART 02239 B
WASHINGTON SAMUEL CABALLERO,
DRO DOCKET NO.: 64559 G
PETITIONER
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ORDER AND OPINION GRANTING ADMINISTRATIVE APPEAL
AND
MODIFYING THE ADMINISTRATOR'S ORDER
On March 27, 1985 the above-named petitioner refiled an
Administrative Appeal against an order issued on July 6, 1984 by
the Rent Administrator, concerning housing accommodations known as
1565 Grand Concourse, Bronx, New York, Apartment 3, wherein the
Administrator dismissed the tenant's complaint of overcharge.
The Commissioner notes that this proceeding was initiated 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.
The tenant commenced his residency at the subject apartment in
September of 1976 pursuant to a two year vacancy lease and
subsequently filed his complaint with the New York City
Conciliation and Appeals Board (CAB). In an opinion issued on
November 17, 1983, the CAB determined that the owner had evaded the
Rent Stabilization Law when he required the tenant to execute a new
lease on June 1, 1977 at an increased rental of $30.00 per month
commencing more than one year before the expiration of the tenant's
vacancy lease which commenced September 15, 1976 (Opinion Number
29,150).
The owner then requested reconsideration of that opinion, claiming
that while the tenant had rented the subject apartment solely for
ART 02239 B
residential purposes, shortly after taking residence he began using
the premises as a photo studio and affixed a sign outside the
premises advertising it as a photo studio. The owner further
alleged that the parties then agreed that the tenant would be
allowed to affix the sign and to use the premises both as a
residence and as a photo studio. In support of his contentions,
the owner submitted photographs and copies of the leases in
question. Based on the record before him, the Administrator then
found that in consideration for the tenant's entering into the June
1, 1977 lease at an increased rental of $30.00 per month the tenant
was granted the right to affix a sign advertising the premises as
a photo studio and to use the premises for commercial purposes.
Therefore, the Administrator determined that the tenant's complaint
should be dismissed since the additional $30.00 per month
constituted additional rent and did not represent an illegal fee.
On appeal, the petitioner-tenant contends, in substance, that:
(A) On September 7, 1976, he advised the owner
that he needed the apartment for a small photo
studio and a residence, and that the owner
responded that the tenant could use the
apartment as he wished;
(B) Seven months later, the owner told the tenant
to sign a new lease and that the law forced
him to raise the rent by $30.00;
(C) Prior to the expiration of the new lease, the
owner again attempted to raise the rent and
upon tenant's refusal to pay that increase,
the owner commenced a hold-over proceeding
which was dismissed after trial in the Housing
Part of the Civil Court; and
(D) New York City Housing Preservation and
Development (HPD) violations were placed on
the subject premises.
In response to the tenant's petition, the owner filed an answer
stating, in substance, that the tenant abuses rent regulations by
continuously filing unsubstantiated charges.
After a careful consideration of the entire evidence of record the
Commissioner is of the opinion that the Administrative Appeal
should be granted and the Administrator's order modified in
accordance with this Order and Opinion.
At the outset, the Commissioner notes that there is no
authorization in the Rent Stabilization Law for owners to charge
additional rents in consideration for allowing tenants to use the
premises for professional or commercial purposes. Whether or not
ART 02239 B
a tenant agrees to such an arrangement is irrelevant, since tenants
cannot waive their rights under the Rent Stabilization Law.
In the instant case, it is undisputed that the owner permitted the
tenant to use the premises as a photo studio. In his subsequent
hold-over proceeding, the owner alleged, unsuccessfully, that the
tenant went beyond the permitted use in that he made structural
alterations and sold merchandise at the premises. Even if true,
however, these considerations cannot be used by an owner to add an
improper charge to the lawful stabilized rent. Finally, it is
noted that the tenant ceased all business operations in the
apartment by July 26, 1982, as documented by a court-approved
stipulation agreement signed by the parties on May 27, 1982.
Thus, the original CAB decision was correct and the $30.00 charged
by the owner in June of 1977 was an overcharge.
On the basis of the entire evidence of record, it is found that the
Administrative Appeal should be granted and the Administrator's
order modified to state that the owner overcharged the tenant in
the amount of $2,914.20, including interest on overcharges since
April 1, 1984, as set forth on the annexed rent calculation chart,
which is incorporated herein. The record does not support a
finding of willfulness in this case, especially since rent
increases for the professional use of apartments were allowable
under rent control. Therefore, treble damages are not awarded.
This order may, upon the expiration of the period in which the
owner may institute a proceeding pursuant to Article Seventy-Eight
of the Civil Practice Law and Rules, be filed and enforced by the
tenant in the same manner as a judgment or not in excess of twenty
percent thereof per month be offset against any rent thereafter due
the owner.
THEREFORE, in accordance with the applicable provisions of the Rent
Stabilization Law and Code, it is
ORDERED, that the petition be, and the same hereby is, granted; and
that the Administrator's order be, and the same hereby is modified
in accordance with this Order and Opinion.
ISSUED:
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JOSEPH A. D'AGOSTA
Acting Deputy Commissioner
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