BA 410033 RT
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 410033 RT
Dana Kaminsky DISTRICT RENT ORDER
DOCKET NO.: TC 79601-G
ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
On January 7, 1987 the above-named petitioner-tenant filed a
Petition for Administrative Review against an order issued on
December 3, 1986 by the Administrator, (Columbus Circle)
concerning housing accommodations known as Apartment 4W, 273 West
90th Street, New York, New York, wherein the Administrator
determined that the owner had overcharged the tenant.
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 on December 23, 1983 by
the tenant filing a complaint of general overcharge with the
former New York City Conciliation and Appeals Board.
The then owner (Marlys Realty Associates) was served with a copy
of the tenant's complaint and was requested to submit rent
records from the base date to prove the lawfulness of the rent
being charged. In answer to the complaint, the owner stated, in
substance, that it took over the premises in September 1983; and
that it could not obtain the complete rental data for the subject
apartment from the prior owner (R & M Realty).
Based upon a finding that the owner failed to submit a complete
rent history, the Administrator applied the Section 42A default
procedures, established the lawful stabilization rent at $292.56
per month and ordered a roll back in the rent and a refund in the
amount of $5197.95, including interest.
In this petition, the tenant contends, in substance, that the
Administrator's order should be modified so as to reflect
overcharges for the period (November 1, 1985 to October 31, 1987)
of the then current lease, based on the rental charged of $451.56
In answer to the tenant's petition, the successor owner (Frank
Magnone) asserts in relevant part, that it took over the premises
on October 28, 1986; and that it should not be liable for
overcharges which occurred prior to its ownership.
After careful consideration of the entire record the Commissioner
BA 410033 RT
is of the opinion that this petition should be granted.
Section 42A of the Rent Stabilization Code requires that an owner
retain complete rent records for each stabilized apartment in
effect from June 30, 1974, to date and produce them to the
Division of Housing and Community Renewal (DHCR) upon demand. If
the apartment was decontrolled from the Rent Control Law, the
owner must provide satisfactory documentary evidence of the
apartment's date of decontrol.
A review of the record discloses that the owner has failed to
provide a complete rental history for the subject apartment.
Also, the Administrator's order, issued on December 3, 1986, only
reflected overcharges of $5197.95, including interest to cover
the period from September 1, 1983 to October 31, 1985.
Accordingly, the Commissioner is of the opinion and finds that
the Administrator properly determined the lawful Stabilization
rent utilizing established procedures based upon the owner's
failure to submit complete rental data. However, the
Administrator's order should be modified so as to reflect an
additional overcharge of $1889.98, including interest to cover
the period started from November 1, 1985 to December 1, 1986, the
issuance date of the Administrator's order. Said overcharge
including interest is computed as follows:
The rental charged as of 11/1/85 $451.56
Lawful stabilized rent less $311.57
($292.56 x 6.5% = $311.57)
computed under guideline no. 17 with a
two-year renewal lease
overcharges = $139.99
x 12 months
Interest Plus = $210.10
Total overcharges = $1889.98
The total amount of overcharges is adjusted to ($5197.95 +
$1889.98) = $7087.93.
The Commissioner notes that Section 2526.1(f)(2) provides that a
current owner is liable for all overcharges collected on or after
April 1, 1984 even when the complaint was filed prior to that
date. Therefore, the prior owner (Marlys Realty) is responsible
for $2393.20, the overcharge collected before April 1, 1984 and
the current owner (Frank Magnone) is responsible for the
This order may, upon the expiration of the period in which the
owner may institute a proceedi g pursuant to Article Seventy-
Eight of the Civil Practice Law and Rules, be filed and enforced
by the tenant in the same manner as a judgment for $2,393.20
against the prior owner. The remaining $4,694.73 can be filed
and enforced by the tenant in the same manner as a judgment
against the current owner or not in excess of twenty percent
thereof per month may be offset against any rent thereafter due
BA 410033 RT
the current owner.
THEREFORE, in accordance with the provisions of the Rent
Stabilization Law and Code, it is
ORDERED, that this petition be, and the same hereby is granted;
and that the order of the District Rent Administrator be and the
same hereby is modified by adjusting the total amount of
overcharges from $5197.95 to $7087.93 so as to reflect an
additional overcharge of $1889.98 to cover the period started
from November 1, 1985 to December 1, 1986; and that as so
modified said order be and the same hereby is affirmed.