ART-07967-L
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-07967-L
: DISTRICT RENT OFFICE
Diane Dowling, DOCKET NO. TC-66819-G
OWNERS: L. Lerman and
M. Boucher
PETITIONER :
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ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
On February 15, 1986, the above-named tenant filed a Petition
for Administrative Review against an order issued on January 15,
1986, by the Rent Administrator, Columbus Circle, New York,
concerning the housing accommodations known as 406 West 25th
Street, New York, New York, Apartment No. 4RW, wherein the Rent
Administrator determined that the owner had overcharged the
tenant.
The tenant had commenced this proceeding by filing a complaint of
rent overcharge. After the owner had failed to comply with the
Administrator's request for a complete rental history of the
apartment, t e Administrator determined, due to that non-
compliance, that the tenant had been overcharged in the amount of
$4,188.90. He reached that determination by using method 2 of
the "Section-42A default" procedure utilized by this Division,
i.e., by employing as the "base" rent the tenant's initial rental
minus applicable "guidelines" increases.
The tenant now contends that the Administrator erred in using the
aforementioned method 2 instead of 1 or 3. Her argument is that
of the three methods, number 2 here yields the higher rather than
the lowest base rent, contrary to the intent of this default
procedure. She asserts specifically that while the
Administrator calculated a base rent of $300, method one, "lowest
rent in the same line," yields $183.21. (In a subsequent letter
the tenant has stated that method three (last rent paid by the
prior tenant) would result in a base rent of $159.60. But
petitioner does not even claim to have made that representation
to the Administrator, and the record contains no corroboration of
the asserted rental figure; therefore the Commissioner will not
further consider using the prior tenant's purported rent as a
base-setting method).
The record contains no owner's response to the petition although
a copy of the tenant's petition was sent to the current owners of
the subject premises, Lerman and Boucher, who acquired ownership
sometime after April 1, 1984.
ART-07967-L
After careful consideration of the record, the Commissioner is of
the opinion that the petition should be granted.
The Rent Administrator's order rejects use of the lowest rent in
the line because the "[b]uilding is not registered." Petitioner
on the other hand asserts that as "7A Administrator" of the
building, on September 3, 1985, she personally "registered the
building and the 18 stabilized apartments," and she has submitted
what is prima facie a photocopy of the 1985 Annual Apartment
Registration for rent stabilized apartment 5RW. The
Commissioner, having no reason to impute fraud to petitioner,
therefore finds that there was a stabilized apartment in the same
line as the one in question, the rent for which ($183.21 on the
aforementioned Registration) yields a lower base than that used
in the Administrator's order. That new base rent is embodied in
the chart appended to this order and opinion, which is hereby
incorporated therein.
Section 2526.1(f) of the Rent Stabilization Code provides in
pertinent part that for overcharges collected prior to April 1,
1984 an owner will be held responsible only for his or her
portion of the overcharge, in the absence of collusion or any
relationship between such owner and any prior owners, and that
for overcharge complaints filed or overcharges collected on or
after April 1, 1984, a current owner shall be responsible for all
overcharge penalties, including penalties collected by any prior
owner.
In the instant case, an examination of the records discloses no
evidence of collusion or of any relationship between the present
owner and any prior owner and discloses that the current owner
acquired title sometime after April 1, 1984. Pursuant to Section
2526.1(f), the prior owner, Tint Realty Corp., is individually
responsible for overcharges collected from August 1, 1982 until
April 1, 1984, that is $3835.80, and the current owners Lerman
and Boucher are individually responsible for overcharges
collected between April 1, 1984 and January 31, 1986 (inclusive
of interest and excess security), that is, $4725.10.
Because this determination concerns lawful rents only through
January 31, 1986, the present owner is cautioned to adjust
subsequent rents to an amount no greater than that determined by
the Rent Administrator's order plus any lawful increases, and to
register any adjusted rents with this order and opinion being
given as the reason for the adjustment.
This order may, upon the expiration of the period in which the
owner may institute a proceeding pursuant to Article 78 of the
Civil Practice Law and Rules, be filed and enforced in the same
manner as a judgment, or not in excess of twenty percent per
month thereof may be offset against any rent thereafter due the
owner.
THEREFORE, in accordance with the provisions of the Rent
Stabilization Law and Code, it is
ORDERED, that this petition be, and the same hereby is, granted.
The overcharge due hereunder is $8560.90.
ART-07967-L
ISSUED:
JOSEPH A. D'AGOSTA
Acting Deputy Commissioner
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