BA 410475 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
----------------------------------X
IN THE MATTER OF THE ADMINISTRATIVE ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.: BA 410475 RO
WINDSOR PLACE CORP.,
DRO DOCKET NO.: L 3113423-R
PETITIONER TENANT: BERNARD JAFFE
----------------------------------X
ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On December 11, 1990, the above-named petitioner-owner filed a
Petition for Administrative Review against an order issued on
December 3, 1986 by the Rent Administrator, 10 Columbus Circle, New
York, New York concerning the housing accommodations known as 401
East 88th Street, Apartment 10F, New York, New York, wherein the
Administrator determined that the tenant had been overcharged.
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 Administrative Appeal is being determined pursuant to the
provisions of Section 42A of the Code.
The issue herein is whether the Rent Administrator's order was
warranted.
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 administrative appeal.
This proceeding was originally commenced by the filing on March 30,
1984 of a rent overcharge complaint by the tenant.
BA 410475 RO
In response to the tenant's complaint, the owner submitted a rental
history from June 1, 1976 but submitted no proof of the base rent
date.
In Order Number CDR 27,826 the Administrator determined that due to
the owner's failure to submit a complete rental history, the owner
had collected a rent overcharge of $10,949.40 inclusive of excess
security and interest on the overcharge occurring on and after
April 1, 1984.
In this petition, the owner contends that it has not received
either the order or the complaint which were mailed to an incorrect
address. The owner further contends that based upon an assurance
of discontinuance with the Attorney General of New York State, it
was determined that there was no overcharge.
The Commissioner is of the opinion that this petition should be
denied.
The Commissioner finds that the Assurance of Discontinuance agreed
to by the owner and the New York State Attorney General does not
preclude the Division from exercising its expertise in determining
lawful rents.
Since the owner responded to the tenant's complaint, its claim of
not having received the complaint is found to be without merit.
The owner's appeal is deemed timely filed since the record
indicates that the order was not served on the owner.
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 Division
of Housing and Community Renewal (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.
An owner is required to submit complete rent records from the base
date. In the absence of such records, Section 42A default
procedures are properly used. The owner herein failed to document
the base rent date. 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 May
31, 1988, the owner is cautioned to adjust subsequent rents to an
amount no greater than that determined by the 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.
BA 410475 RO
This order may, upon the expiration of the period in which the
owner may institute a proceeding pursuant to Article Seventy-Eight
of the Civil Practice Law and Rules, be filed and enforced by the
tenant in the same manner as a judgment or not in excess of twenty
percent thereof per month may be offset against any rent thereafter
due the owner.
THEREFORE, in accordance with the Rent Stabilization Law and Code,
it is
ORDERED, that this petition be, and the same hereby is, denied, and
that the District Rent Administrator's order be, and the same
hereby is, affirmed
ISSUED:
------------------------
JOSEPH A. D'AGOSTA
Acting Deputy Commissioner
|
