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

      ------------------------------------X 
      IN THE MATTER OF THE ADMINISTRATIVE    ADMINISTRATIVE REVIEW
      APPEAL OF                              DOCKET NO.: BA 410121 RO

           West 56th St. Associates Co.,     DRO DOCKET NO.: TC-080745 G

                                             TENANT: Jon Cantor               
                           PETITIONER    
      ------------------------------------X                             


            ORDER AND OPINION GRANTING PETITION IN PART AND REMANDING
                         PROCEEDING TO RENT ADMINISTRATOR


      On January 2, 1987, the above-named owner filed a Petition for 
      Administrative Review against an order issued on November 28, 1986, by 
      the Rent Administrator, 10 Columbus Circle, New York, New York, 
      concerning the housing accommodations known as 330 West 56th Street, New 
      York, New York, Apartment No. 4D, wherein the Rent Administrator 
      determined that the owner had overcharged the tenant.

      The Commissioner notes that this proceeding was filed prior to April 1, 
      1984.  Sections 2526.1(a)(4) and 2521.1(d) of the Rent Stabilization 
      Code (effective May 1, 1987) governing rent overcharge and fair market 
      rent proceedings, provide that determination of these matters be based 
      upon the law or code provisions in effect on March 31, 1984.  Therefore, 
      unless otherwise indicated, reference to Sections of the Rent 
      Stabilization Code (Code) contained herein are to the Code in effect on 
      April 30, 1987.

      This proceeding originated with the tenant's filing of a complaint of 
      rental overcharge.  Attached to that complaint was inter alia an 
      apparent copy of an owner's record of tenants and rentals for the 
      subject apartment for the period from October 1, 1974, through September 
      30, 1985, on which the tenant had apparently written "landlord supplied 
      rent history." 

      The owner's Answer to the complaint referred to an annexed "rent 
      ledger," which rather than being such a ledger (with entries made a the 
      times of their corresponding transactions), appears instead to be a 
      rent-calculation chart prepared all at one time.  That chart includes 
      annual increases of 2.2% (in addition to vacancy and renewal increases) 
      commencing on October 1, 1975.

      The Administrator subsequently sent the owner a Final Notice of Pending 
      Default, demanding inter alia, complete copies of all leases for the 
      subject apartment, covering the entire period from the "base rent date" 
      to the date on which the tenant who filed the complaint took occupancy.  
      In response the owner resubmitted the aforementioned Answer and annexed 
      chart, along with a copy of a Certification of Eligibility issued on 
      November 15, 1974, by the City Department of Development, granting a 







      partial tax exemption for the subject premises pursuant to Section 421 
      of the Real Property Tax Law. 

      In the ensuing Order, here appealed, the Administrator calculated an 
      overcharge based on actual-rent figures (in an appended chart) 
      corresponding neither to those in the apparent ledger that the tenant 
      had submitted nor to those submitted by the owner.

      In this petition, the owner alleges in substance that the Administrator 
      erred in not granting the aforementioned 2.2% rental increases, and that 
      the owner has been prejudiced by arithmetical errors involving rental 
      increases commencing with the lease of September 15, 1982. 

      In answer to the owner's petition, the tenant alleges in substance that 
      additional rent overcharges should have been calculated.

      The Commissioner is of the opinion that the petition should be granted 
      in part and the proceeding remanded for redetermination of the 
      overcharge complaint.

      The owner of a building constructed pursuant to RPTL Section 421-a is 
      allowed nine annual cumulative rental increases of 2.2% of the initial 
      rent.  Petitioner established below that it was entitled to such 
      increases for the subject apartment, but the Administrator did not 
      include them in his overcharge computations.  The order must therefore 
      be reversed.

      Further, the record contains no substantiated rental history, so that 
      (a) no basis for the figures used in the Administrator's calculations is 
      apparent and (b) no recalculation by the Commissioner is possible.  The 
      matter must therefore be remanded to the Administrator for 
      redetermination of the tenant's complaint, which redetermination will 
      allow the nine increases discussed in the preceding paragraph and afford 
      the parties an additional opportunity to submit a complete rental 
      history including copies of prior leases.

      THEREFORE, in accordance with the Rent Stabilization Law and Code, it is

      ORDERED, that this proceeding be, and the same hereby is, granted to the 
      extent of remanding this proceeding to the Rent Administrator for 
      further processing in accordance with this order and opinion.  The 
      automatic stay of so much of the Rent Administrator's order as directed 
      a refund is hereby continued until a new order is issued upon remand.  
      However, the Administrator's determination as to the rent is not stayed 
      and shall remain in effect, except for any adjustments pursuant to lease 
      renewals, until the Administrator issues a new order upon remand.


      ISSUED:


                                                                  
                                      JOSEPH A. D'AGOSTA
                                      Acting Deputy Commissioner
    

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