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. BB 110040 RO
: DRO DOCKET NO. 36951
SHARON TOWERS TENANT: DONNA BARBARINO
PETITIONER :
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On February 10, 1987, the above-named petitioner-owner filed
a Petition for Administrative Review against an order issued on
January 29, 1987, by the Rent Administrator, 10 Columbus Circle,
New York, New York, concerning the housing accommodations known as
62-59 108th Street, Forest Hills, New York, Apartment No. 3C,
wherein the Rent Administrator determined that the owner had
overcharged the tenant. On April 13, 1987, the Commissioner
issued an Order and Opinion Rejecting the Petition, and on
November 18, 1987, the Commissioner issued an Order and Opinion
Reopening Administrative Review Proceeding for Further
Consideration.
The Administrative Appeal is being determined pursuant to the
provisions of Section 2526.1 of the Rent Stabilization 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 issue raised by the administrative appeal.
This proceeding was originally commenced in November 1984, by
the filing of a rent overcharge complaint by the tenant.
In answer to the complaint the owner submitted a complete
rental history for the subject apartment from March 1. 1980.
In Order Number 36,951, the Rent Administrator determined
that the tenant had been overcharged in the amount of $1735.39
through January 31, 1987, and directed the owner to refund such
overcharge to the tenant.
In this petition, the owner contends in substance that the
Rent Administrator incorrectly included a 5% vacancy allowance
effective in September 1981 which the owner did not take; that the
owner is therefore entitled to a 10% vacancy allowance effective
October 1, 1983 upon the initial occupancy of the tenant herein
BB 110040 RO
rather than the 5% vacancy allowance allowed by the Rent
Administrator; and that when this is corrected, the total
overcharge would be only $44.39.
The Commissioner is of the opinion that this petition should
be denied.
Pursuant to Guideline 15, in effect when the complaining
tenant took occupancy on October 1, 1983, the vacancy allowances
are as follows:
1) 0% where vacancy allowances totalling 15% or more have been
charged pursuant to provisions governing new tenancies commencing
on or after July 1, 1979.
2) 5% where vacancy allowances totaling more than 0% but less than
15% have been charged pursuant to provisions governing new
tenancies commencing on or after July 1, 1979.
3) 10% where vacancy allowances were last charged pursuant to
provisions governing new tenancies commencing July 1, 1975 through
June 30, 1979.
4) 15% where no vacancy allowances have been charged pursuant to
provisions governing new tenancies commencing on or after July 1,
1975.
In the instant case, the record indicates that although the
owner did not charge a vacancy allowance for the vacancy lease
commencing in September 1981, the lease commencing March 1, 1980
was also a vacancy lease and the owner has not stated, nor
submitted any evidence to show, that it did not charge a vacancy
allowance for the March 1, 1980 vacancy lease. It is noted that
in order to receive a 10% vacancy allowance, the owner would have
had to show that it received no vacancy allowances since at least
June 30, 1979. Since the owner has not shown this, the Rent
Administrator was warranted in not allowing a 10% vacancy
allowance pursuant to Guideline 15.
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.
ISSUED
ELLIOT SANDER
Deputy Commissioner
ADMINISTRATIVE REVIEW BUREAU
COVERING MEMORANDUM
ARB Docket No.: BB 110040 RO
DRO Docket No/Order No.: 36951
Tenant(s): Donna Barbarino
Owner: Sharon Towers
Code Section: 2526.1 of RSC
Premises: 62-59 108th Street, Forest Hills, New York, Apt. 3C
Order and Opinion Denying Petition
Petition denied on basis amount of rent overcharge was
correctly determined in that owner has not submitted sufficient
evidence to show that it was entitled to 10% Guideline 15 vacancy
allowance rather than 5% Guideline 15 vacancy allowance allowed by
Rent Administrator.
APPROVED:
Processing Attorney:
Supervising Attorney:
Bureau Chief:
Deputy Commissioner:
Mailed copies of Order and Determination to:
Tenant(s)
Owner
Tenant's Atty
Owner's Atty
Date: : by
signature
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