DHCR Decisions
ADM. REVIEW DOCKET NO.: BC 110223 RT
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.:
BC 110223 RT
:
DRO DOCKET NO.:
35571
SIDNEY AND ANNETTE FENSTER,
PETITIONERS :
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ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
On March 23, 1987, the above-named petitioner-tenants filed
a Petition for Administrative Review against an order issued on
February 25, 1987 by the Rent Administrator, concerning housing
accommodations known as Apartment 4D, 162-01 Powells Cove Road,
Whitestone, New York, wherein the Rent Administrator determined,
among other things, that no overcharge existed.
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.
The issue under appeal is whether the Administrator's order
was warranted.
This proceeding was commenced on October 4, 1984, by the
filing of a tenant's objection to the 1984 registration, wherein
the tenant objected, among other things, that the rent being paid
was an overcharge, and that only one month's security, rather
than two, could be charged. The tenants took occupancy on July
1, 1972 pursuant to a lease commencing July 1, 1972 and expiring
on June 30, 1975, at a monthly rental of $425.
A copy of the tenants' objection to the registration was
sent to the owner on October 15, 1986. In its response, the owner
submitted the tenants' initial lease and all subsequent leases,
along with the rental history. On the renewal lease commencing
July 1, 1986 the two-month security deposit had been crossed out
and replaced with a deposit requirement equivalent to one month's
rent; this revision was initialed by the owner. A copy of the
owner's response was sent to the tenant. The tenant did not
ADM. REVIEW DOCKET NO.: BC 110223 RT
respond.
By order dated February 25, 1987, under Docket No. 35571,
the Administrator found, among other things, that no overcharge
existed, that the apartment became subject to rent stabilization
on July 1, 1974, and that the owner was permitted to retain a
security deposit equivalent to two months' rent.
In their petition for administrative review, the tenants
contend that their current lease provides for one month's
security. They enclose a letter dated May 1, 1986 from the owner
stating that they will be receiving a check for the overcharge on
their security.
In response to the petition, the owner alleges, among other
things, that the complaint should be dismissed since it was found
that the owner was allowed to retain two months' security.
The Commissioner is of the opinion that this petition should
be granted.
Section 2525.4 of the Rent Stabilization Code states, in
pertinent part, that no owner shall demand a security deposit
which exceeds the rent for one month, "provided, however, that
where a greater security deposit was paid by the tenant in
continuous occupancy since the date the housing accommodation
became subject to the Rent Stabilization Law, such deposit may
continue in effect during the term of such lease and any renewals
thereof with the same tenant."
The Commissioner finds that the owner, in accordance with
the above statute, was entitled to retain a security deposit
equivalent to two months' rent from the inception of the
petitioners' tenancy through the lease period expiring June 30,
1986. However, by reducing the required security deposit
effective with the lease commencing July 1, 1986, the owner
relinquished its right to retain a security deposit equivalent
to two months' rent. The Administrator neglected to consider
this waiver by the owner of its right to require a two-month
security deposit.
Accordingly, the total overcharge is one month's rent, or
$664.05.
The owner is directed to refund such sum to the tenant
immediately. Should the owner fail to do so, not in excess of
twenty percent thereof per month of the amount owed by the owner
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,
granted, and that the Rent Administrator's order be, and the same
hereby is, modified pursuant to this order and opinion.
ISSUED:
ADM. REVIEW DOCKET NO.: BC 110223 RT
JOSEPH A. D'AGOSTA
Deputy Commissioner
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