ADM. REVIEW DOCKET NO.: ART 09162-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.: ART 09162-K
: DRO DOCKET NO.: TC 074563-G
CDR 07177
HENRY ROSENBLATT, - TENANT
PETITIONER : Louis Bombart
------------------------------------X OWNER - c/o J & L REALTY
CO.
ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
On April 1, 1986, the above-named petitioner-tenant timely
refiled a Petition for Administrative Review, which had been
previously rejected, against an order issued on August 30, 1985 by
the Rent Administrator, 10 Columbus Circle, New York, New York,
concerning the housing accommodation known as Apartment 5F, 1601
Ocean Parkway, Brooklyn, New York, wherein the Rent Administrator
dismissed the tenant's complaint.
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.
The tenant commenced this proceeding on June 15, 1983 by
filing a complaint of rent overcharge with the former New York
City Conciliation and Appeals Board (CAB), a predecessor of the
DHCR. The tenant alleged that despite the absence of a lease
clause which would permit a rent increase during a lease term (a
clause pursuant to Section 42B of the former Code), the owner was
demanding a rent increase based upon approved Major Capital
Improvements (MCI). The tenant stated he had deleted the Section
42B clause from the lease and had initialed the deletion in the
margin before returning the signed lease to the owner who then
signed it.
A copy of the complaint was served on the owner on August 16,
1985.
In response, the owner asserted that it had been granted a
$53.02 rent increase by the CAB. The owner further asserted that
a judge in landlord-tenant court had ordered the tenant to pay
the increase because there was no bilateral agreement on the
deletion. Additionally, the owner stated that precedent for such
increases had been established in prior leases in which the tenant
had accepted such clauses without protest.
ADM. REVIEW DOCKET NO.: ART 09162-K
In the order here under review, the Administrator determined
that the Section 42B clause inserted in the tenant's lease was
valid and dismissed the complaint.
In the appeal the tenant reiterates his belief that he had
avoided the rent increase by deleting the Section 42B clause from
the lease and the owner's having signed the lease thereafter.
In responding to the appeal, the owner re-submits a copy of
the answer submitted below and contends that the tenant's appeal
seeks to overturn an authorized rent increase without offering new
insights or additional evidence.
After careful consideration, the Commissioner is of the
opinion that this petition should be granted.
Under the common law, an acceptance of an offer must mirror
the offer. The tenant's clause deletion constituted both a
rejection and a counter offer which the owner could either accept
or reject. The tenant argues correctly that by signing the lease
as altered by the tenant, the owner exercised its acceptance of
the counter offer.
When a rent increase is granted for a major capital
improvement, the increase will be effective during a renewal lease
term, if there is a provision in the lease authorizing collection
of additional rent during the term pursuant to orders of the
Division or the Rent Guidelines Board. Otherwise, the increase
may generally be added to the base rent for the subsequent lease
term. In the instant proceeding, notwithstanding that the Major
Capital Improvement increase was effective April 23, 1982, and the
prior lease first expired May 31, 1982, the tenant had already
signed a lease renewal which did not contain a Section 42B clause.
Thus, the parties had entered into a binding contract not subject
during its term to modification of the rent. Accord: CD 810141
RT. The Commissioner finds, therefore that the lawful regulated
rent of the subject apartment is $346.12 as of June 1, 1982
through May 31, 1985.
The Commissioner notes that the effective date of the
increase was April 23, 1982. The tenant apparently first paid the
increase on June 29, 1983. The owner, therefore, is hereby
ordered to refund so much of the MCI increase at issue as was
collected during the lease period June 1, 1982 through May 31,
1985.
The Commissioner further notes, however, that the MCI
increase was added to the base rent as of its effective date and
is collectible as included within the lawful stabilization rent
during all future leases, beginning with the lease commencing June
1, 1985.
This order may, upon the expiration of the period in which
the owner may institute a proceeding pursuant to Artic e seventy-
eight of the civil practice law and rules, be enforced by the
ADM. REVIEW DOCKET NO.: ART 09162-K
tenant by offsetting not in excess of twenty percent thereof per
month 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 for administrative review be, and
the same hereby is, granted, and, that the order of the Rent
Administrator be, and the same hereby is, revoked in accordance
with this order and opinion.
ISSUED:
JOSEPH A. D'AGOSTA
Deputy Commissioner
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