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STATE OF NEW YORK
DIVISION OF HOUSING AND COMMUNITY RENEWAL
OFFICE OF RENT ADMINISTRATION
92-31 UNION HALL STREET
JAMAICA, NEW YORK 11433
------------------------------------X SJR 6380
IN THE MATTER OF THE ADMINISTRATIVE ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.: BA 110147 RO
DRO DOCKET NO.: TC 051731 G/
Michael M. Lee, CDR 28367
TENANT: Jose and Susan
ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
On January 16, 1987, the above-named petitioner-owner filed a Petition
for Administrative Review against an order issued on December 12, 1986
by the Rent Administrator, 10 Columbus Circle, New York, New York,
concerning the housing accommodations known as 84-09 Talbot Street,
New York, Apartment No. A34, wherein the Administrator determined that
an overcharge had occurred and directed the owner to refund overcharges
of $4,299.28 inclusive of excess security and interest on the overcharge
occurring on or after April 1, 1984. The owner's Petition was denied on
March 10, 1992.
Subsequent thereto, the petitioner filed a petition in the Supreme Court
pursuant to Article 78 of the Civil Practice Law and Rules requesting
that the Commissioner's determination upholding the Rent Administrator's
order be reversed.
On August 5, 1992, an order was signed by Justice Leviss remitting the
proceeding to the DHCR for reconsideration in light of the decision in
JRD Management V. Eimicke.
The issue herein is whether the Rent Administrator properly determined
the tenant's complaint of rent overcharge.
Review of the record reveals that the tenants commenced this proceeding
by filing a complaint of rent overcharge on March 30, 1981 and that the
owner submitted an incomplete rental history, omitting a lease covering
the period June 1, 1979 through October 31, 1979, in response. Based
upon the evidence in the record, the Commissioner issued an order
affirming the Rent Administrator's determination.
However upon reconsideration, the Commissioner is of the opinion that
this petition should be granted.
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Section 42A of the former Rent Stabilization Code requires that an owner
retain complete records for each stabilized apartment in effect from
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
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
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
Stabilization Code.) The DHCR has sought to be consistent with the
legislative intent of the Omnibus Housing Act (Chapter 403, Laws of
1983) to determine rent overcharge complaints filed 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 of their rights 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
four years prior to April 1, 1984 of the right to recover such
However, it has recently been held in the case of J.R.D. Mgmt. v.
Eimicke, 148 A.D.2d 610. 539 N.Y.S. 2d 667 (App. Div. 2d Dept., 1989).
motion for leave to reargue or for leave to appeal to the Court of
Appeals denied ( App. Div. 2d Dept., 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
reargue denied (Court of Appeals, N.Y.L.J., Feb. 15, 1990, 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 four 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 331 (App. Div. 1st Dept. 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.
In this case, an examination of the rental history from April, 1980
discloses that the April 1, 1980 rent was $287.50. Review of the record
reveals that all subsequent rents were collected in accordance with
applicable Rent Guidelines Board orders. Accordingly, the Commissioner
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finds that there was no overcharge and dismisses the complaint.
If the owner has already complied with the Rent Administrator's order
and there are arrears due to the owner as a result of the instant
determination, the tenant is permitted to pay off the arrears in 24
equal monthly installments. Should the tenant vacate after the issuance
of this order or have already vacated, said arrears shall be payable
THEREFORE, in accordance with the Appellate Division ruling in JRD, it
ORDERED, that this petition be, and the same hereby is, granted and that
the order of the Rent Administrator be, and the same hereby is, revoked
and it is found that no rent overcharge occurred.
JOSEPH A. D'AGOSTA
Acting Deputy Commissioner
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