BA 610109 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 610109 RO
GARY TOWERS COMPANY,
DISTRICT RENT ADMINISTRATOR'S
DOCKET NO. 051824
TENANT: CLARICE ROBINSON
PETITIONER
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ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
On January 27, 1987 the above-named owner filed a petition for
administrative review of an order issued on January 20, 1987 by
a District Rent Administrator concerning housing accommodations
known as 3123 Bailey Avenue, Apartment 6C, Bronx, New York,
wherein the Administrator determined that an 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 September 20, 1984 upon the
filing of the tenant's objection to the rent/services
registration. The tenant stated, among other things, that she
took occupancy on May 1, 1984, and the rent shown on the RR-1
form was $508.25. The tenant added that the rent registration
was later amended by the owner to $499.42.
The Division of Housing and Community Renewal (DHCR) received the
owner's answer. The owner alleged that the registered rent
included 1/40th of the cost of equipment ordered or installed
during the vacancy period in April 1984. The cost of these items
could not be estimated when the rent was registered and the lease
was signed. When the actual costs proved to be lower, the owner
alleged it appropriately lowered the actual rent received and the
registered rent. Further, the owner alleged that the prior
tenant had filed an overcharge complaint under Docket No.
B 3101248 R. In that case DHCR ruled on March 4, 1986 that a
fee of $10.00 per month for a tenant-installed air conditioner
would be reasonable. The owner did actually collect only $7.00
per month. The owner submitted with its answer a complete lease
history, a copy of the prior DHCR order, and copies of paid bills
to document the allowable vacancy improvements.
In the order here under review the Administrator established the
lawful stabilized rent at $529.08 per month as of May 1, 1985
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through April 30, 1986, and directed the owner to refund $894.05.
This amount included excess security and treble damages through
April 30, 1986.
In its petition for administrative review, the owner repeats the
allegations made below. Namely, it cites the prior DHCR order
(B 3101248 R) as evidence of the fact that the rent charged was
lawful as to the prior tenant in 1984. Specifically, the owner
alleges th t the Administrator erred in applying the air-
conditioning charge in his calculations, wherein the
Administrator permitted the owner only $7.00 per month.
In her answer to the petition for review, the tenant states that
she has never had an air conditioner in the subject apartment.
After careful consideration the Commissioner is of the opinion
that this petition should be granted.
First, in recomputing the legal stabilization rent the
Commissioner notes that the $10.00 per month was deemed to be a
reasonable charge by the DHCR in a prior proceeding. However,
the owner collected only $7.00 per month. In accordance with
long-standing precedent in such cases, this $7.00 charge becomes
part of the base rent for the purpose of computing any guideline
increases. Thenceforth, the stabilized tenant of the apartment
(as well as future stabilized tenants) had the right to install
the tenant's own air conditioner at no additional increase in
rent. Accordingly, the Administrator erred in not including the
amount in the base rent subject to guideline increases in each
subsequent lease.
Second, in his calculations the Administrator made one further
error. In applying Guideline 16, the Administrator allowed for a
6% increase based on a one-year renewal instead of the
appropriate 9% increase for a two-year renewal. (See attached
Rent Calculation Chart).
The resultant recalculation of the rent shows that no overcharges
occurred.
The attached Rent Calculation Chart is incorporated in and fully
made a part of this order and opinion.
THEREFORE, in accordance with the Rent Stabilization Law and
Code, it is
ORDERED, that this petition be, and the same hereby is, granted,
and that the Administrator's order be, and the same hereby is,
revoked; and it is
FURTHER ORDERED, that if the owner has already complied with the
Administrator's order and there are arrears due to the owner as a
result of the instant determination, the tenant may pay off the
arrears in twelve equal monthly installments. Should the tenant
vacate after the issuance of this order, said arrears shall be
payable immediately.
Note: The current tenant retains the right to install an air
conditioning unit in the subject apartment at no
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additional cost.
ISSUED:
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JOSEPH A. D'AGOSTA
Deputy Commissioner
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