BA 410205 RO
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 NO. BA 410205 RO
MILFORD MANAGEMENT CORPORATION, DISTRICT RENT ADMINISTRATOR'S
DOCKET NO. L 3116853 R
TENANT: MAX SAYAH
PETITIONER
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ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
IN PART
On January 8, 1987 the above-named owner filed a petition for
administrative review of an order issued on December 4, 1986 by
a Rent Administrator concerning the housing accommodation known
as Apartment 30E, 155 West 68th Street, New York, New York
wherein the Administrator determined that a rent overcharge had
occurred.
The Commissioner has reviewed all of the evidence in the record
and has carefully considered that portion of the record relevant
to the issues raised by the petition for review.
This proceeding was commenced on March 31, 1984 upon the filing
of a complaint of rent overcharge by the tenant. The tenant
stated that he was never presented with a rental history and
requested a general rent review.
On March 5, 1985, the owner submitted its answer. The owner
stated that perhaps overcharges had occurred but they were
clerical errors and not willful. The owner further stated that
where an overcharge had been discovered the rents were adjusted
and tenants were credited the amount of the overcharge. With its
answer the owner submitted a rental history with complete copies
of pre-adjustment lease, copies of invoices and tenant
acknowledgments of equipment improvements in the subject
apartment, and copies of recent rental tapes showing the
adjustments.
In reply the tenant acknowledged that the owner had made the
adjustments and credits alleged, but said that he had no way of
confirming the owner's figures.
In the order issued on December 4, 1986 the Administrator
determined that the lawful stabilization rent was $1,065.13 as of
April 1, 1984 through March 31, 1986 and directed the owner to
refund $30,062.53 in overcharges through March 31, 1986 including
BA 410205 RO
interest from April 1, 1984 and excess security.
In its petition for administrative review, the owner repeats the
arguments made below. Namely, it is alleged that the
Administrator failed to take into consideration the rent
adjustments and credits that the owner had made during the
pendency of the proceeding below. In fact, it produces evidence
to show that by the owner's calculations the legal stabilization
rent and the rent being charged is less than the amount
determined by the Administrator.
In his answer to the petition, the tenant acknowledges the
credits and adjustments made by the owner, but points out that
these credits did not include interest.
After careful consideration, the Commissioner is of the opinion
that this petition should be granted in part.
A reexamination of the record indicates that the owner has fully
corrected its prior overcharges. As noted, the Administrator, in
fact, allowed the owner a ten-percent vacancy allowance under
Guideline 11. The owner, in its calculations, took only a five-
percent allowance. Accordingly, the Commissioner finds that the
lawful stabilization rent from April 1, 1984 through March 31,
1986 was $1,027.60, which was the amount actually charged and
collected by the owner after the owner made rent adjustments. In
addition, the Commissioner finds that the entire principal amount
of the overcharges had been credited to the tenant.
However, the owner did not credit the tenant with interest.
Section 2526.1 of the Rent Stabilization Code states that if the
Division of Housing and Community Renewal (DHCR) determines that
an owner has collected overcharges and no treble damages are
assessed, interest on post-April 1, 1984 overcharges must be
included. The post-April 1, 1984 overcharges continued for
eleven months at a rate of $792.77 per month. The Commissioner
finds that the owner should have credited the tenant with $334.49
in interest in March 1985 when the owner made its otherwise
accurate rent adjustments.
Accordingly, the owner is directed to refund to the tenant the
amount of $334.49.
THEREFORE, pursuant to the Rent Stabilization Law and Code, it is
ORDERED, that this petition be, and the same hereby is, granted
in part, and that the Administrator's order be, and the same
hereby is, modified in accordance with this order and opinion;
and it is
FURTHER ORDERED, that if the owner has not complied with this
Order and Opinion, upon the expiration of the period in which to
institute a proceeding pursuant to Article 78 of the Civil
Practice Law and Rules for judicial review of this order, the
tenant may offset against any rent thereafter due the owner not
in excess of twenty percent of $334.49 per month until the amount
of $334.49 is fully repaid.
BA 410205 RO
ISSUED:
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ELLIOT SANDER
Deputy Commissioner
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