STATE OF NEW YORK
DIVISION OF HOUSING AND COMMUNITY RENEWAL
OFFICE OF RENT ADMINISTRATION
92-31 UNION HALL STREET
JAMAICA, NEW YORK 11433
IN THE MATTER OF THE ADMINISTRATIVE : ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.:BA 110455-RO
GRENADIER REALTY CORP. RENT ADMINISTRATOR'S
c/o JANET SPAFFORD DOCKET NO.:Q 3122212-R
------------------------------------X TENANTS: MR & MRS NICHOLAS TORRES
ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
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