OFFICE OF RENT ADMINISTRATION
                                     GERTZ PLAZA
                               92-31 UNION HALL STREET
                               JAMAICA, NEW YORK 11433

      APPEAL OF                              DOCKET NO.:BA 110455-RO
         c/o JANET SPAFFORD                  DOCKET NO.:Q 3122212-R
                            PETITIONER    : 
      ------------------------------------X  TENANTS: MR & MRS NICHOLAS TORRES


      On January 5, 1987, the above-named owner filed a Petition for 
      Administrative Review of an order issued on December 3, 1986 by the Rent 
      Administrator concerning the housing accommodations known as 247-18 76th 
      Avenue, Bellerose, New York, Apartment 9C-1 wherein the Rent Administrator 
      determined that the owner had overcharged the tenant.

      The Administrative Appeal is being determined pursuant to the provisions of 
      Section 2526.1 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 by the filing on February 26, 1984 
      of a rent overcharge complaint by the tenant.

      In answer to the tenant's complaint, the owner submitted rent records 
      dating back to at least April 1, 1980.

      In Order Number Q 3122212-R, the Rent Administrator determined that the 
      tenant had been overcharged in rent in the amount of $1,207.14, including 
      excess security and interest on that portion of the overcharge occurring on 
      and after April 1, 1984.

      In this petition, the owner disputes the Rent Administrator's calculations 
      and states that the tenant was not overcharged in rent.

      The Commissioner is of the opinion that this petition should be granted.

      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) and to produce such records to the DHCR upon demand.

      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 


          DOCKET NUMBER: BA 110455-RO
      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 rent overcharges.

      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) of the current Rent Stabilization 
      Code.)  The DHCR has therefore applied Section 42A of the former Code to 
      overcharge complaints filed prior to April 1, 1984, requiring complete rent 
      records in these cases.  In following this policy, the DHCR has sought to 
      be consistent with the legislative intent of the Omnibus Housing Act 
      (Chapter 403, Laws of 1983), as implemented by the New York City 
      Conciliation and Appeals Board(CAB), the predecessor agency to the DHCR, to 
      determine rent overcharge complaints filed with the CAB 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 right to have the lawful 
      stabilized rent determine from the June 30, 1974 base date and so as not to 
      deprive tenants whose overcharge claims accrued more than 4 years prior to 
      April 1, 1984 of their right to recover such overcharges.  In such cases, 
      if the owner failed to produce the required rent records, the lawful 
      stabilized rent would be determined pursuant to the default procedure 
      approved by the Court of Appeals in 61 Jane Street Associates v. CAB, 65 
      N.Y.2d 898, 493 N.Y.S.2d 455 (1985).

      However, it has recently been held in the case of J.R.D. Mgt. v. Eimicke, 
      148 A.D.2d 610, 539 N.Y.S. 2d 667 (app. Div. 2d Dep't 1989), motion for 
      leave to reargue or for leave to appeal to the Court of Appeals denied 
      (App. Div. 2d Dep't, 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, 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 4 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 Dep't 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.

      Given that, 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.

      Furthermore, for the period April 1,1 980 through September 30, 1986 used 
      in the Administrator's calculations, there is no evidence that the tenant 
      paid any excess in rents lawfully allowed under the applicable rent 


          DOCKET NUMBER: BA 110455-RO
      Therefore, the Administrator's order finding a rent overcharge must be 

      If the owner has already complied with the District Rent Administrator's 
      order and there are arrears due to the owner as a result of the instant 
      determination, the tenant shall be 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 is

      ORDERED, that this petition for administrative review be, and the same 
      hereby is, granted, 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



TenantNet Home | TenantNet Forum | New York Tenant Information
DHCR Information | DHCR Decisions | Housing Court Decisions | New York Rent Laws
Disclaimer | Privacy Policy | Contact Us

Subscribe to our Mailing List!
Your Email      Full Name