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. BB 410838 RT
: DRO DOCKET NO. 30663
ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On February 11, 1987, the above-named petitioner-tenant filed a Petition
for Administrative Review against an order issued on January 13, 1987 by
a Rent Administrator concerning the housing accommodations known as
442 West 57th Street, New York, New York, Apartment No. 7H wherein the
Rent Administrator determined that the owner had not overcharged the
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
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 on September 10,
1984 of a tenant's objection to the rent and services registration. The
tenant claimed that the owner increased her rent illegally in the lease
commencing December 1, 1980. The tenant also claimed that various items
were omitted from the list of registered services.
The owner was served with the complaint, and submitted the rental
history, including leases dating from the base date of April 1, 1980.
In Order Number 30663 dated January 13, 1987, the Rent Administrator
determined that the tenant had not been overcharged. The order also
affirmed the tenant's claims regarding the list of services.
In her petition, the tenant generally disputes the Administrator's
determination, and repeats her allegation that the increase on her
December 1, 1980 lease was illegal. Specifically, the tenant claims
that the owner illegally terminated the existing lease and issued her a
new one on which her roommate's name had been added without the tenant's
permission. This lease included an unlawful vacancy allowance. In
addition, she alleges that she was twice threatened with eviction unless
either she or the roommate moved out.
Finally, she claims that the $12.00 fuel surcharge dating from December
1, 1980 is illegal, and that she is still paying it in her rent.
In its answer, the owner generally maintains that all rent increases
were within the proper limits set by the Rent Guidelines Board. As for
the December 1, 1980 lease, the owner claims that it included a vacancy
allowance because the name of the tenant's roommate was added to the
lease. The owner disputes that the roommate's name was added without
the tenant's permission because both of them signed the lease as well as
the attached rider. With regard to the $12.00 fuel surcharge, the owner
maintains that it was authorized under the guidelines, and that it was
never included in the base rent.
The Commissioner is of the opinion that this petition should be denied.
The tenant in this case is claiming that the owner improperly added the
name of her co-tenant to her three year renewal lease, effective
December 1, 1980, and that the rent increase exceeded the amount
authorized under the guidelines. In addition, she alleges that the
owner improperly broke the existing lease, which was not due to expire
until September, 1981. In response, the owner contends that the
increase, which included a vacancy allowance, was lawful under the
guidelines, and that the tenant and co-tenant both voluntarily signed
the lease and the attached rider.
The Commissioner herein recognizes that, under the facts of the instant
case, the owner is correct and there were no overcharges. Prior to the
1983 change in the Real Property Law, the Conciliation and Appeals Board
(CAB, the predecessor agency to the DHCR) had ruled that if a person who
was not related to the tenant moved in, an owner could either start an
eviction proceeding or cancel a lease to execute a new one which both
occupants signed as co-tenants, and which would include a vacancy
allowance (Accord: ARL 11273-K). In cases where the owner waited until
the end of the existing lease, however, the vacancy allowance was
considered waived, and could not be added to the new lease. In the
instant case, the owner availed himself of this policy and interposed a
new lease prior to the expiration of the existing one on September 30,
1981. As a result, the Administrator properly included the vacancy
allowance in the rent calculations.
The record also establishes that the $12.00 fuel surcharge imposed in
February, 1980 was never included in the base rent.
THEREFORE, in accordance with the Rent Stabilization Law and Code, it is
ORDERED, that the tenant's petition be, and the same hereby is, denied,
and, that the Administrator's order be, and the same hereby is,
JOSEPH A. D'AGOSTA
Acting Deputy Commissioner