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. BA 110287 RO
: DRO DOCKET NO. Q3118592R
WINSTON HOUSE ASSOCIATES TENANT: LORRAINE M. BARRERO
PETITIONER :
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On December 31, 1986, the above-named petitioner-owner filed a
Petition for Administrative Review against an order issued on
November 26, 1986, by the Rent Administrator, 10 Columbus Circle,
New York, New York, concerning the housing accommodations known as
167-10 Crocheron Avenue, Queens, New York, Apartment No. 5P. The
petition was dismissed on July 19, 1991, on the basis that it was
not timely filed. On July 31, 1991, the proceeding was reopened
for consideration on the merits on the basis that the owner had
submitted evidence showing its petition was in fact, timely filed.
The Administrative Appeal is being determined pursuant to the
provisions of Section 2522.4 of the Rent Stabilization Code.
The issue herein is whether the Rent Administrator's order
was warranted.
The Commissioner has reviewed all of the evidence in the
record and has carefully considered that portion of the record
relevant to the issue raised by the administrative appeal.
This proceeding was originally commenced in March 1984, by
the filing of a rent overcharge complaint by the tenant in which
the tenant stated that she first moved to the subject apartment on
February 1, 1981, at a rental of $375.00 per month.
On October 30, 1984, the owner was serve with a copy of the
tenant's complaint and directed to submit a complete rental
history including copies of invoices showing costs and dates of
installation for any rent increases based on new equipment.
On November 7, 1984, the owner submitted a response including
a copy of a letter dated January 5, 1981 from Cerbe Building Corp.
at the same address and telephone number as the owner. In said
letter it was stated that certain improvements in the kitchen of
the subject apartment totalling $2,903.62 had been done. No
actual invoice or date for the work done was included.
BA 110287 RO
On September 5, 1986, the owner was directed to substantiate
the improvements listed in the January 5, 1981 letter from Cerbe
Building Corp. by sending a copy of a paid bill. In a reply dated
September 10, 1986, the owner resubmitted a copy of the January 5,
1981 letter from Cerbe Building Corp.
In Order Number CDR 27,673, the Rent Administrator determined
that the tenant had been overcharged in the amount of $7422.09 and
directed the owner to refund such overcharge to the tenant. In
such determination no allowance was made for any kitchen
improvements on the basis that the owner had not substantiated the
costs of any improvements.
In this petition, the owner alleges in substance that it was
entitled to a rent increase based on the kitchen improvements,
that the tenant never denied that improvements had been made, that
the owner was never notified that its submission of evidence was
incomplete, and that it had submitted cancelled checks in support
of its contention. Along with its petition, the owner submitted
copies of two cancelled checks made out to Cerbe Building Corp.
dated October 10, 1980 and March 4, 1981, for $3000 and $2520.00
respectively. Nothing on these checks indicated they were for
work done in the subject apartment.
In answer to the owner's petition, the tenant stated in
substance that the kitchen work was done prior to October of 1980
as the subject apartment was rented to Edith Chiarucci as of at
least November 1980 and the kitchen work was already done at that
time and that the tenant herein never signed any agreement
regarding the kitchen improvements.
In response to the tenant's answer, the owner stated in
substance that it had never contended that the kitchen was
renovated on October 1980, but that the copies of checks were
submitted as proof of costs and reflect the date of payment for
work already completed, that the tenant has conceded that the
kitchen was renovated and that the owner was not required to
obtain the tenant's approval for improvements made when the
subject apartment was vacant.
The Commissioner is of the opinion that this petition should
be denied.
Section 2522.4 of the Rent Stabilization Code provides in
pertinent part, that an owner is entitled to a rent increase of
1/40th of the total cost including installation of new equipment
or improvements provided to the tenant's housing accommodation on
written tenant consent to the rent increase. In the case of
vacant housing accommodations, tenant consent is not required.
In the instant case, the owner did not submit proof to
substantiate the cost of the improvements in the proceeding before
the Rent Administrator although specifically directed to do so.
It is noted that such proof is especially important and subject to
BA 110287 RO
close scrutiny in this case since the owner's contractor Cerbe
Building Corp. is listed as having the same address and telephone
number as the owner. The owner's submission of canceled checks
was made for the first time on appeal and cannot properly be
considered herein since this is not a de novo proceeding.
Moreover, an examination of such checks and the letter from Cerbe
Building Corp. submitted below does not show when the kitchen work
was done in the subject apartment or if such work was in fact done
when the subject apartment was vacant so that tenant consent would
not have been necessary. It is noted that the owner was directed
to supply such information in the proceeding before the Rent
Administrator. In addition the amounts listed on the checks -
$3000 and $2520.00 - do not match the amount claimed in the
January 5, 1981 letter from Cerbe - $2903.62. Accordingly, the
Rent Administrator's order disallowing a rent increase for the
improvements and finding a rent overcharge was warranted.
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 as a judgment
or not in excess of twenty percent per month of the overcharge 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 for administrative review be, and
the same hereby is, denied, and, that the order of the Rent
Administrator be, and the same hereby is, affirmed.
ISSUED
ELLIOT SANDER
Deputy Commissioner
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ADMINISTRATIVE REVIEW BUREAU
COVERING MEMORANDUM
ARB Docket No.: BA 110287 RO
DRO Docket No/Order No.: Q3118592R
Tenant(s): Lorraine M. Barrero
Owner: Winston House Associates
Code Section: 2522.4 of the RSC
Premises: 167-10 Crocheron Ave., Queens, New York, Apt. 5P
Order and Opinion Denying Petition
Petition denied on basis owner did not substantiate cost and
date of installation of kitchen improvements so that Rent
ADministrator correctly did not allow rent increase for kitchen
improvements.
APPROVED:
Processing Attorney:
Supervising Attorney:
Director:
Deputy Commissioner:
Mailed copies of Order and Determination to:
Tenant(s)
Owner
Tenant's Atty
Owner's Atty
Date: : by
signature
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