ADM. REVIEW DOCKET NO.: BA 110136 RO
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
------------------------------------X
IN THE MATTER OF THE ADMINISTRATIVE : ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.: BA 110136 RO
D.R.O. DOCKET NO.:
: TC 076047-G
SJR NO.: 3728
GEORGE SUBRAJ,
PETITIONER :
------------------------------------X
ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
AFTER COURT REMIT
This proceeding was commenced by the filing of a rent
overcharge complaint by the tenant (Ivory Watson) concerning
housing accommodations known as Apartment No. 5B at 88-15 144th
Street, Jamaica, New York.
The owner was served with a copy of the complaint and was
requested to submit rent records to prove the lawfulness of the
rent being charged. In answer to the complaint, the owner stated,
among other things, that the prior owner was unable to furnish
leases for the subject apartment.
In Order Number CDR 27,841, the District Rent Administrator
determined that the owner had failed to submit a complete rental
history as required by Section 42A of the Code; established the
lawful stabilized rent based on the tenant's vacancy rent minus a
guideline and vacancy allowance; determined that the tenant had
been overcharged; and directed the owner to refund overcharges of
$5448.15, including interest on overcharges collected after April
1, 1984, to the tenant.
The owner filed a petition for administrative review
challenging the Administrator's order.
In his petition, the owner contended that he had advised the
DHCR on November 12, 1986 that the owner and tenant had reached a
settlement and that the tenant wished to withdraw her complaint.
The owner submitted a statement by the tenant dated November 7,
1986 in which the tenant stated that she wished to withdraw her
complaint and a release signed by the tenant.
The tenant did not submit an answer to the owner's petition.
By order issued November 17, 1988, the Commissioner found
that the Administrator properly determined the lawful stabilized
ADM. REVIEW DOCKET NO.: BA 110136 RO
rent based on established default procedures. The Commissioner
also found that the settlement agreement submitted by the owner
was not binding on the tenant since it was not approved by the
DHCR or ordered by a court and the tenant was not represented by
counsel.
Subsequent thereto the owner filed a petition in Supreme
Court pursuant to Article 78 of the Civil Practice Law and Rules
challenging the Commissioner's order.
In the Article 78 petition, the owner argues that the case
should be reconsidered in light of the decision of the Appellate
Division, Second Department in the case of JRD Mgt Corp. v.
Eimicke. The owner also asserts that the tenant's complaint of
rent overcharge was "specific" in nature, that the tenant only
complained of the $8.00 per month fuel surcharge she had been
charged; that the DHCR should not have expanded on this complaint;
that the tenant's specific complaint was resolved by the
settlement, pursuant to which the excess fuel surcharge was
refunded; that there was no rational basis for the DHCR to reject
the tenant's withdrawal; and that the DHCR has accepted such
withdrawals where the tenant was not represented by an attorney
and where the withdrawal was not so ordered by a court.
By stipulation entered into between the owner and the DHCR,
the proceeding was remitted to the DHCR for reconsideration of
all issues raised by the Article 78 petition and for issuance of a
new order consistent with the decision of the Appellate Division,
Second Department in the case of J.R.D. Mgt. Corp. v. Eimicke.
Subsequent thereto, pursuant to the DHCR's agreement to
reconsider all issues raised by the owner in its court action, the
owner submitted rental documentation from April 1, 1980 consisting
of copies of the prior owner's rent ledger sheets indicating that
the prior tenant paid a rent of $355.00 per month for March and
April 1980 and that the apartment was vacant thereafter until it
was occupied by the complainant tenant in September 1980.
A copy of this submission was served on the tenant. The
tenant did not respond thereto.
After careful consideration of all of the evidence of record,
the Commissioner finds that the petition should be granted.
A review of the record in this case indicates that the tenant
filed a complaint of specific rent overcharge, asserting that the
rent of $375.00 per month for her initial 3 year lease commencing
September 1, 1980 was increased by $8.00 for a fuel surcharge
commencing September 1981 and that she was charged a $10.00 late
fee when she paid her rent after the tenth of the month. The
tenant did not claim that her initial rent of $375.00 per month
was excessive or request a rental history from the base date. The
Commissioner finds that it was improper for the Administrator to
treat this case as a complaint of general rent overcharge. The
settlement agreement submitted by the owner, which is undisputed
by the tenant, indicates that the $8.00 per month fuel surcharge
ADM. REVIEW DOCKET NO.: BA 110136 RO
which was collected from September 1981 to August 1983 was
refunded to the tenant.
The Commissioner finds that any further consideration of the
tenant's complaint as a complaint of general rent overcharge is
unwarranted and the Administrator's order treating the tenant's
complaint as a complaint of general rent overcharge and applying
the default procedure to establish the lawful stabilized rent
should be revoked. The Commissioner notes that, in light of the
JRD decision which is controlling in Second Department cases
limiting the requirement for rent records to a period of 4 years
from the most recent registration and the owner's submission of
rental documentation from April 1, 1980, the tenant was not
overcharged (except, as noted above, the improper fuel surcharge
which was refunded to the tenant). In light of this finding and
the tenant's withdrawal of the complaint, the Commissioner deems
it appropriate to terminate this proceeding.
Any arrears owed by the tenant as a result of this order may
be paid by the tenant in equal monthly installments over the
course of the next 24 months. Should the tenant vacate after
issuance of this order or have already vacated, all 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 District Rent Administrator's order be and the
same hereby is revoked.
ISSUED:
ELLIOT SANDER
Deputy Commissioner
ADM. REVIEW DOCKET NO.: BA 110136 RO
|