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 410426-RO
: DISTRICT RENT OFFICE
Anthony Ficucielllo, c/o DOCKET NO. TC-077121-G
Elmcor Mgmt. Corp.,
TENANT: Joanne DeSarno
ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On January 2, 1987, the above-named petitioner-owner filed a
Petition for Administrative Review against an order issued on
December 4, 1986, by the Rent Administrator, 10 Columbus Circle,
New York, New York, concerning the housing accommodations known
as 303 West 11th Street, New York, New York, Apartment No. 3D
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.
The Administrative Appeal is being determined pursuant to the
provisions of Section 42A of the former Rent Stabilization Code.
The issue herein is whether the Rent Administrator's order was
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 by the filing in October
1983 of a rent overcharge complaint by the tenant.
In response to the tenant's complaint, the owner on September 22,
1986 stated in substance that he was submitting all the
information that he had been given upon purchasing the subject
building in January, 1984 and submitted a rental history from
August 1, 1978.
In Order Number CDR 28057, the Rent Administrator determined
that, due to the owner's failure to submit a complete rental
history, the owner had collected a rent overcharge of $4,684.29 as
of August 30, 1988, including interest on that portion of the
overcharge occurring on and after April 1, 1984.
In this petition, the owner contends in substance that he
submitted all materials on September 22, 1986, and that all rents
charged were based on the rent history received at the time of
The Commissioner is of the opinion that this petition should be
Section 42A of the former Rent Stabilization Code requires that an
owner retain complete records for each stabilized apartment in
effect from June 30, 1974 to date and produce them to the DHCR
upon demand. If the apartment was decontrolled from the Rent
Control Law after June 30, 1974, the owner must provide
satisfactory documentary evidence of the apartment's date of
decontrol and submit a rental history from that date.
In the instant case, the owner has not provided a complete rental
history as mandated by Section 42A.
Accordingly, the Rent Administrator's order establishing the
lawful stabilization rent utilizing the Section 42A default
procedure and finding a rent overcharge was warranted.
Because this determination concerns lawful rents only through
September 30, 1988, the owner is cautioned to adjust subsequent
rents to an amount no greater than that determined by the Rent
Administrator's order plus any lawful increases, and to register
any adjusted rents, with this order and opinion being given as the
explanation for the adjustment.
This order may, upon the expiration of the period in which the
owner may institute a proceeding pursuant to Article 78 of the
Civil Practice Law and Rules, be filed and enforced in the same
manner as a judgment or not in excess of twenty percent per month
thereof may be offset against any rent thereafter due the owner.
THEREFORE, in accordance with the provisions of the Rent
Stabilization Law and Code, it is
ORDERED, that this petition for administrative review be, and the
same hereby is, denied and that the order of the Rent
Administrator be, and the same hereby is, affirmed. The lawful
stabilization rent is $342.13 per month from September 1, 1986 to
August 31, 1988.
JOSEPH A. D'AGOSTA