Docket Number: BC 410075-RT, et al.
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 NOS.: BC 410075-RT
: (Refile of AL-410250-RT)
JEANNE SILVERS, : BC 410034-RT
:
: D.R.O. DOCKET NO.:
PETITIONER : TC-073022-G
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ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
IN PART AND REMANDING PROCEEDINGS FOR FURTHER CONSIDERATION
On December 24, 1986 the above-named petitioner-tenant filed a
Petition for Administrative Review against an order issued on
December 2, 1986 by the then Rent Administrator at the Columbus
Circle District Rent Office, concerning the housing accommodations
known as 220 Madison Avenue, New York, NY, Apartment 8-O wherein the
Administrator determined the tenant's overcharge complaint. On
February 26, 1987 the Commissioner issued an order under PAR Docket
No. AL 410250-RT rejecting the tenant's PAR for various procedural
reasons without prejudice to refile a properly completed PAR in a
timely manner. The tenant perfected the appeal on March 2, 1987.
A duplicate refiled PAR, inadvertantly assigned the separate PAR
Docket Number BC 410034-RT, was dismissed by the Commissioner on
April 27, 1987 for untimeliness.
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 issue in this appeal is whether the Administrator's order was
warranted.
The tenant commenced these proceedings on March 27, 1983 questioning
the legal rent and asserting that the owner refused to provide the
tenant with the leases of the prior tenant although requested to do
so.
The owner responded that they did not own the building, a co-op, but
rather the unsold shares to the tenant's apartment. The owner
submitted the tenants leases from January 1, 1977 as well as lease
renewals, as well as a rent worksheet from 1972 through December 31,
1976. The owner's worksheet indicated that the apartment was
decontrolled in July 1973.
Docket Number: BC 410075-RT, et al.
On December 2, 1986, the Administrator issued an order finding that
the owner had complied with the request to submit a complete rental
history for the subject apartment from the base date in accordance
with its obligation under Section 42A of the (former) Code,
established the lawful stabilized rent as of January 1, 1985 at
$394.85, found of overcharges commencing on that date, and ordered
a refund in the amount of $636.94.
On appeal, the petitioner argues that the rent overcharges had been
continuous from the first lease dated January 1, 1977 and not just
from April 1, 1984.
After careful consideration the Commissioner is of the opinion that
the petition should be granted in part.
An examination of the record below reveals that, the Administrator's
finding to the contrary, the owner did not submit a complete rental
history. The owner's submission of a rent calculation chart of the
rent charged from the June 30, 1974 base date through December 31,
1976 is not adequate proof of the rent history, as it was not
business records prepared in the ordinary course of business
contemporaneous with the events contained therein. In this
connection, the Commissioner, notes that an owner is required to
maintain and produce a complete rental history and respond to the
tenant's complaint. A charge of ownership doesn't relieve an owner,
including an owner of shares to rent stabilized apartment, from the
obligation to produce all relevant leases or other business records.
The Commissioner is of the further opinion that the matter should be
remanded to the Administrator for further processing. On remand the
Administrator shall provide the owner the opportunity to submit a
complete rental history as would be provided by for example, leases
and lease renewals, ledger sheets, rent cards, etc. The tenant
shall be served copies of the owner's submissions, if any, and shall
be provided the opportunity to comment thereon.
If the owner fails to submit a complete rental history from the base
date, the Administrator shall establish the lawful stabilized rent
based on the lowest of the following amounts: 1) The lowest rent
for a similar apartment in the same building; 2) the current
tenant's initial rent minus any allowance for the tenant's initial
leases; 3) the prior tenant's last rent.
The Commissioner's April 27, 1987 order dismissing the PAR Docket
under BC-410034-RT for untimeliness is revoked and the case docket
is terminated as duplicative of the instant proceedings.
Docket Number: BC 410075-RT, et al.
THEREFORE, in accordance with the provisions of the Rent & Eviction
Regulations, the Rent Stabilization Law and Code, Chapter 403 of the
Law of 1983, and Chapter 102 of the Laws of 1984, it is
ORDERED, that this owner's petition be, and the same hereby is
granted in part, that the Rent Administrator's order be, and the
same hereby revoked, and the matter remanded to Administrator for
further consideration in accordance with the above.
ISSUED:
ELLIOT SANDER
Deputy Commissioner
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