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 410139-RT &
: BC 410284-RT
JOYCE HENNESSEY DRO ORDER NO.: CDR 26,815
PETITIONER : DRO DOCKET NO.: L 3113122-R
OTHER PARTY: W.S.H. MANAGING CORP.
c/o D. EISENSTEIN REALTY
ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
The above named petitioner-tenant timely filed a Petition for
Administrative Review against an order issued on November 18, 1986, by the
Rent Administrator at 10 Columbus Circle, New York, New York, concerning
housing accommodations known as Apartment Number 5F at 201 West 81st
Street, New York, New York, wherein the Administrator dismissed the
tenants overcharge complaint.
The Commissioner notes that two Administrative Review files have
inadvertently been opened with respect to this one Petition for
Administrative Review. Administrative Review docket numbers BA 410139-RT
and BC 410284-RT respectively, have been assigned to these files.
Therefore, in order to correct this clerical error and pursuant to Section
2527.5(f) of the Code effective May 1, 1987, the proceedings pending under
docket numbers BA 410139-RT and BC 410284-RT have been consolidated.
The Commissioner notes that this proceeding was initiated 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.
The Commissioner has reviewed all of the evidence in the record and has
carefully considered that portion of the evidence relevant to the issues
raised in the administrative appeal.
This proceeding was originally commenced on March 30, 1984 by the filing
of a complaint of rent overcharge with the New York City Conciliation and
Appeals Board (CAB), the agency formerly charged with enforcing the Rent
Stabilization Law) by the tenant.
The owner at that time, Balc Development Eighty-First, Inc. filed an
answer to the complaint.
DOCKET NUMBER: BA 410139-RT & BC 410284-RT
On the chart attached to and made a part of the order, based on the rental
documentation submitted by the owner, the Administrator established the
stabilized rent and determined that no overcharges had been collected.
In the Petition, the tenant contends, in substance, that the Administrator
erred on the rent calculation chart attached to the order by deeming the
tenant's initial rent ($1,250.00) as the legal rent under her vacancy
lease (September 1, 1982 through August 31, 1983) and using that rent as
the base for calculating all subsequent Guidelines increases. The tenant
notes that the owner had asserted the, following grounds, among others, to
support its contention that the tenants initial lease rent was the legal
rent: 1. the owner was entitled to a first rent because the apartment had
been substantially altered and/or; 2. the owner was entitled to an
increase based on the substantial sumit had expended for improvements to
the apartment and/or; 3. the rent was the fair market rent and the owner
was entitled thereto because the prior tenant had been a rent controlled
tenant. The tenant asserts that the Administrator did not specify the
basis for its determination as to the tenant's initial rent and that the
record below was inadequate to support any one of the grounds upon which
the owner based its contention that the initial lease rent was the legal
rent. The tenant therefore seeks the reversal of the order below and a
determination of the legal regulated rent under her initial lease using
the Special Guidelines to determine a Fair Market Rent Appeal (FMRA); or,
in the alternative, the tenant seeks a remand of these proceedings to the
Administrator so that a proper determination of the tenant's initial legal
regulated rent can be made.
In its answer to the petition, the owner, W.S.H. Managing Corp, c/o D.
Eisenstein Realty, asserts the following: 1. in addition to the instant
overcharge proceeding, the tenant filed a FMRA (to whi h Docket No., L-
3113285-T had been assigned) and as of the date of the owner's answer (May
26, 1987) that FMRA had not been decided; 2. the tenant does not attack
the calculation of the increases charged after the vacancy lease; 3. the
tenant challenges the vacancy lease rent, which the owner does not have to
defend as the legal rent in an overcharge proceeding; that is an issue
which may only be, properly, raised in a FMRA.
The Commissioner is of the opinion that the Petition should be denied.
The Commissioner notes that the tenant's FMRA was denied in an order
issued January 5, 1989. The Division's records show that that order was
not appealed by the tenant. That being the case, and the time for such an
appeal having expired, the Commissioner finds that the Administrator's
determination that the tenant had not been overcharged should now be
THEREFORE, pursuant to the Rent Stabilization Law and Code, it is
ORDERED, that this Petition be, and the same hereby is, denied.