BA 410148 RT; ETC.
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
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IN THE MATTER OF THE ADMINISTRATIVE ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NOS.: BA 410148 RT
CA 410065 RT
BF 410216 RT
BD 430022 RT
STANLEY YALKOWSKY,
D.R.O. DOCKET NOS.: 020935
48845
039044
34414
PETITIONER 19466
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ORDER AND OPINION REMANDING PROCEEDINGS ON APPEAL
On December 29, 1986, the above-mentioned petitioner-tenant filed
a Petition for Administrative Review (BA 410148 RT) against an
order (020935) issued on December 9, 1986 by the District Rent
Administrator, 10 Columbus Circle, New York, New York, concerning
housing accommodations known as Apartment 20G, 25 Central Park
West, New York, New York.
On December 27, 1987, the same petitioner filed another Petition
for Administrative Review (CA 410065 RT) against an order
(048845) issued on December 22, 1987 by same Administrator
concerning the same housing accommodations.
On June 8, 1987, the same petitioner filed another Petition for
Administrative Review (BF 410216 RT) against an order (039044)
issued on May 11, 1987 by the same Administrator concerning the
same housing accommodations.
On April 13, 1987, the same petitioner filed another Petition for
Administrative Review (BD 430022 RT) against an order (34414)
issued on March 18, 1987 by the same Administrator concerning
Apartment 20E of the same building.
The Commissioner has consolidated these four petitions as they
all involve common issues of law and fact.
The issue in these appeals is whether the District Rent
Administrator's orders were warranted.
The applicable sections of the law are Section 2(i)(1)(c), 2(m),
25 and 26 of the former Rent Stabilization Code and Sections
2520.6(r), 2522.3, 2522.6 and 2528 of the current Rent
Stabilization Code.
BA 410148 RT; ETC.
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 appeals.
Docket Number 048845
This proceeding was commenced on August 10, 1984 by the tenant's
filing of an objection to the rent/services registration wherein
the tenant contended in substance that the April 1, 1984 rent of
$861.01 for Apartment 20G was an overcharge, that he received the
RR-1 Form from the owner on July 7, 1984, that he first filed an
overcharge complaint on May 27, 1980 with the New York City
Conciliation and Appeals Board (CAB), the agency formerly charged
with enforcing the Rent Stabilization Law, and that ownership of
the subject premises had changed several times since his CAB
complaint. The tenant enclosed a copy of his CAB complaint dated
May 27, 1980 wherein the tenant stated that he wasn't given the
DC-2 Form until several months after first moving in, that the
rental amounts listed as the 1978 maximum base rents were
inflated, that his rent was in excess of the fair market rent
especially considering the poor conditions of the two apartments
and the fact that Apartment 20E had no kitchen, closets or
entryway.
On July 14, 1986, the owner submitted its answer to the tenant's
objection contending in substance that the tenant commenced
occupancy of the subject apartment on October 1, 1978; prior to
that time the apartment was rent controlled; the 1978/1979
maximum base rent for the subject apartment was $614.73; pursuant
to the Omnibus Housing Act of 1983, the base rent date for the
subject apartment was the rent charged on March 31, 1980; the
tenant was the first rent stabilized tenant of the subject
apartment and did not challenge the initial legal regulated rent;
the tenant's initial rent of $717.51 did not exceed the fair
market rent because the 1978 Maximum Base Rent (MBR) of $614.73
plus a 20% Special Guidelines increase equals an amount which was
greater than the tenant's initial rent; and the rental history
for the subject apartment indicated that no overcharge occurred.
On November 17, 1987, the former managing agent (Chanin
Management, Inc.) of the former owner (Century Apartments, Inc.)
informed the Division of Housing and Community Renewal (DHCR)
that the subject building was sold by Century Apartments, Inc. in
January of 1981, that the tenant executed a general release to
Century Apartments Inc. on August 30, 1981 wherein $4,471.48 was
provided to the tenant in return for a release as to all claims
and demands against Century Apartments, Inc., and that therefore
the tenant did not have a claim against the former owner.
In Docket Number 048845 issued December 22, 1987, the District
Rent Administrator terminated the proceeding based upon the
general release executed by the tenant on August 30, 1981.
In the petition under Administrative Review Docket Number CA
410065 RT, the tenant contends, inter alia, that the
Administrator's order is incorrect and should be reversed because
the release given to the owner at the civil trial has nothing at
all to do with his rent registration objection; the wrong owner
is listed on the Administrator's order; so many docket numbers
BA 410148 RT; ETC.
have been given to the instant proceeding that he is uncertain as
to which matter he is appealing; and the Administrator has issued
inconsistent orders with regard to his objection to the apartment
registration.
In response, the owner contends in substance that the general
release executed by the tenant on August 30, 1981 protects the
former owner from all possible claims by the tenant.
Docket Number 020935
This proceeding was commenced on August 10, 1984 by the tenant's
filing of an objection to the rent/services registration (a
duplicate of the objection filed under Docket Number 048845).
On October 27, 1986, the owner submitted its answer to the
objection wherein the owner questioned the timeliness of the
tenant's objection and alleged that the tenant had fil d a pre-
April 1, 1984 overcharge complaint under Docket Number 048845,
and therefore these proceedings should be combined and decided
simultaneously. The owner also incorporated its answer filed
under Docket Number 048845.
In Docket Number 020935 issued December 9, 1986, the District
Rent Administrator determined that the tenant had filed a timely
objection to the rent registration, but that no overcharge had
occurred from the base rent date of April 1, 1980.
In the petition under Administrative Review Docket Number BA
410148 RT, the tenant contends in substance that the
Administrator's order is incorrect and should be reversed because
the CAB never adjudicated his first complaint as to the legality
of his initial rent of $717.51 for Apartment 20G; it was wrong
for the Administrator to use the rent charged on April 1, 1980 as
the base rent; that his initial rent of $575.00 for apartment 20E
was excessive considering the fact that the prior tenant was rent
controlled and the 1972-1973 MBR was $345.46; and he hasn't
received an answer regarding his complaint as to Apartment 20E.
In response, the owner contends in substance that the rental
history for the subject apartment confirms the fact that no
overcharge occurred; pursuant to the Omnibus Housing Act of 1983,
the base rent for the subject apartment was the rent charged on
March 31, 1980; and pursuant to the holding in the J.R.D.
Management Corp. case, the owner is only required to provide rent
records from no more than four years prior to the Administrator's
order.
Docket Number 039044
This proceeding was commenced on August 10, 1984 by the tenant's
filing of an objection to the rent/services registration (a
duplicate of the objections filed under Docket Numbers 020935 and
048845).
In Docket Number 039044 issued May 11, 1987, the District Rent
Administrator dismissed the tenant's objection as being untimely
(filed 104 days after receipt of the registration).
BA 410148 RT; ETC.
In the petition under Administrative Review Docket Number BF
410216 RT, the tenant contends in substance that the
Administrator's order is incorrect and should be reversed because
the tenant timely filed his objection within ninety days after
receipt of the registration; the tenant has had an overcharge
complaint pending since 1980 which has yet to be resolved; and
the Administrator has needlessly created several docket numbers
for the instant proceeding causing much confusion.
In response, the owner contends in substance that the
Administrator's order should be affirmed as the tenant's
objection was filed more than 104 days after receipt of the
registration.
Docket Number 019466
This proceeding was commenced on August 10, 1984 by the tenant's
filing of an objection to the rent/services registration for
Apartment 20E of the subject building wherein the tenant
contended in substance that the April 1, 1984 rent of $690.00 was
an overcharge and that the subject apartment did not contain a
stove, refrigerator, sink, closets or kitchen. The tenant
further contended that he first filed an overcharge complaint
with the CAB on May 27, 1980, but hadn't received a determination
yet and that ownership of the subject premises had changed
several times since then.
The owner submitted an answer to the tenant's objection on
November 5, 1985 and contended in substance that: the tenant
moved into Apartment 20G on October 1, 1978; the tenant rented
the adjoining premises, Apartment 20E, on January 1, 1979; at the
tenant's request the owner agreed to alter Apartment 20E by
removing the electrical equipment from the kitchen as well as the
sink, kitchen cabinets and closets, and by installing an
interior door between the two apartments; the alteration
agreement between the owner's managing agent and the tenant was
an arm's length transaction since the tenant was an attornery;
the tenant himself requested the change in services and therefore
cannot now allege a reduction of services or object to the
registration; there is not evidence such as a DHCR date stamp on
the tenant's objection to establish conclusively that the tenant
timely filed his objection, therefore the tenant's objection must
be dismissed; and the tenant was not overcharged as the tenant's
initial rent of $575.00 was less then the fair market rent of
$605.39 (1978 MBR of $504.49 plus the Special Guidelines increase
of 20%). In support of these contentions, the owner submitted a
letter signed by both the tenant and the former owner's managing
agent wherein the parties agreed that a gas range, refrigerator,
kitchen sink and kitchen cabinets would not be supplied in
Apartment 20E, but that the landlord agreed to install at its
own expense to a door between Apartments 20E and 20G.
Unfortunately, the owner's answer was never served on the tenant.
In Docket Number 19466 issued December 17, 1985, the District
Rent Administrator determined that the tenant had filed a timely
objection to the apartment registration, that the owner did not
provide the services of a stove, kitchen cabinets, sink,
refrigerator and closets for Apartment 20E, and that the above
services which had been temporarily removed from Apartment 20E
BA 410148 RT; ETC.
must be reinstalled upon the separation of Apartments 20E and
20G.
Docket Number 034414
This proceeding was commenced on October 5, 1984 by the tenant's
refiling of his objection to the rent/services registration which
he previously filed on August 10, 1984 under Docket Number
019466.
On October 27, 1986, the owner submitted a copy of the answer
which it filed under Docket Number 019466.
The tenant was served with a copy of the owner's answer on
February 19, 1987. In his response to the owner's answer, the
tenant contended in substance that he never made any agreement
with the owner to forego a kitchen in Apartment 20E, that his
signature was forged by the owner on the letter relating to the
alleged agreement to forego equipment in Apartment 20E, his
objection to the registration was timely filed, and that his
initial rent of $575.00 was excessive in light of the fact that
the prior tenant only paid a monthly rent of $278.12.
In Docket Number 034414 issued March 18, 1987, the District Rent
Administrator determined that no overcharge occurred with respect
to Apartment 20E.
In the petition under Administrative Review Docket Number BD
430022 RT, the tenant contends in substance that the District
Rent Administrator's order is incorrect and should be reversed
because the owner listed in the order is not and never was the
owner of the subject building, he never arranged with the owner
to remove all kitchen appliance from Apartment 20E, his initial
rent of $575.00 for Apartment 20E was improper, and his original
overcharge complaint concerning Apartment 20E was filed with the
CAB in 1980, but has yet to be determined, and several
submissions by the owner pertaining to the instant proceeding and
related proceedings were provided to the tenant after the date of
the Administrator's order or were not provided to the tenant at
all.
The owner did not submit a response to the tenant's petition.
The Commissioner is of the opinion that these proceedings must be
remanded for further consideration.
A review of the record in the instant case indicates that the
tenant filed an overcharge complaint with the CAB on May 27,
1980, but unfortunately neither the CAB nor the DHCR ever
adjudicated his overcharge complaint. On August 10, 1984 the
tenant filed timely objections to the rent/services registrations
for Apartments 20E and 20G, included copies of his original CAB
overcharge complaint, and requested a determination regarding his
original CAB complaint. Accordingly, the Commissioner deems it
appropriate to treat the tenant's rent registration objections as
overcharge complaints filed prior to April 1, 1984 for which
Section 42A of the former Rent Stabilization Code applies.
Section 42A requires that an owner retain complete records for
BA 410148 RT; ETC.
each stabilized apartment in effect from June 30, 1974 (or the
date the apartment became subject to rent stabilization, if
later) to date and to produce such records to the DHCR upon
demand.
A further review of the rental history in the instant case
discloses that the complaining tenant was the first rent
stabilized tenant of Apartments 20E and 20G and was questioning
the initial legal regulated rents of both apartments. Thus, this
proceeding must be remanded to determined whether the tenant was
entitled to challenge the initial legal regulated rents of the
subject apartments pursuant to Sections 25 and 26 of the former
Rent Stabilization Code, and if so, to determine whether the
initial legal regulated rents exceed the fair market rents of the
subject apartments. All parties are to be notified and given a
chance to submit evidence in such remanded proceeding including
evidence as to whether the tenant was served with the Initial
Legal Regulated Rent Notices (DC-2 Notices). If the tenant was
served with the DC-2 Notices, then the tenant's complaints must
be dismissed unless they were filed within ninety days after the
tenant received the DC-2 Notices. The Commissioner notes that
the tenant has alleged that the MBR amounts for both apartments
were excessively high, therefore the Administrator should also
determine the validity of these MBR's.
With regard to the tenant's contentions that Apartment 20E did
not have a stove, refrigerator, kitchen, sink and closets, that
the tenant never agreed to the removal of this equipment, and
that his alleged signature on a letter submitted by owner
agreeing to the removal of the equipment was a forgery, the
Commissioner finds that this matter must also be remanded for a
hearing to be held to determined whether the tenant consented to
the removal of the above-mentioned equipment. If the tenant's
signature on the letter submitted by the owner is found to be a
forgery, then the apartment registration should be amended to
include the above-mentioned equipment and appropriate punitive
sanctions for fraud should be imposed if found to be warranted by
the Administrative Law Judge.
With regard to the owner's contention that the general release
executed by the tenant on August 31, 1981 protects the owner from
all possible claims by the tenant, the Commissioner notes that
the tenant has asserted that the general release has nothing to
do with the instant proceeding, but instead pertained to an
eviction proceeding for non-payment of rent wherein the judge
awarded the tenant a rent abatement, punitive damages and
attorney's fees due to a severe leak problem in Apartment 20G
which was not repaired by the owner. Accordingly, the
Commissioner rejects the owner's contention.
With regard to the owner's contention that pursuant to the
Omnibus Housing Act, the base rent date for the subject
apartment was March 31, 1980 and that pursuant to the J.R.D.
Management Corp. decision, the owner is only required to provide
rent records from no more than four years prior to the
Administrator's order, the Commissioner notes that the tenant's
original overcharge complaint was filed prior to April 1, 1984,
and therefore Section 2(i)(1)(c) of the former Rent Stabilization
Code controls which states as follows:
BA 410148 RT; ETC.
The Initial Legal Regulated Rent for a dwelling unit
which was subject to the City Rent Law on June 30,
1974, and by virtue of a vacancy on or after July 1,
1974, becomes subject to the Rent Stabilization Law,
shall be the first rent charged and paid after the
dwelling unit first becomes subject to the Rent
Stabilization Law subject to the right of appeal as
prescribed in Sections 24 and 25 of the Code.
Since the tenant herein was the first rent stabilized tenant to
occupy both of the subject apartments after decontrol from the
Rent Control Law, the appropriate base rent dates for Apartments
20G and 20E are October 1, 1978 and January 1, 1979,
respectively. Furthermore, the Commissioner notes that the
case of J.R.D. Management Corp. v. Eimicke, 148 A.D.2d 610 (App.
Div. 2d Dept. 1989), only applies to accommodations located in
the Second Judicial Department and the subject premises is
located in the First Judicial Department. Accordingly, these
contentions of the owner are rejected by the Commissioner.
THEREFORE, in accordance with the Rent Stabilization Law and
Code, it is
ORDERED, that these petitions be, and the same hereby are,
granted to the extent of remanding this proceeding to the
District Rent Administrator for further processing in accordance
with this Order and Opinion. The following District Rent
Administrator's orders are hereby revoked: 048845, 020935,
039044, 034414 and 19466.
ISSUED:
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ELLIOT SANDER
Deputy Commissioner
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