BC 410492 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.: BC 410492 RO
WISK ASSOCIATES, RENT ADMINISTRATOR'S
DRO DOCKET NO.: L 3113879 R
TENANT: PAULINE KATZ
PETITIONER
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ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
IN PART
On March 20, 1987 the above named petitioner-owner filed a
Petition for Administrative Review against an order issued on
February 17, 1987, by a District Rent Administrator, concerning
housing accommodations known as Apartment 7-A at 310 East 70th
Street, New York, New York, wherein the District Rent
Administrator determined that the tenant had been overcharged.
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 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 of a rent
overcharge complaint by the tenant on March 30, 1984.
The tenant took occupancy pursuant to a 3 year lease commencing
July 1, 1975 and expiring June 30, 1978 at a monthly rent of
$421.73. The tenant stated that there was a hardship increase in
1975, but she forgot the amount.
The owner was served with a copy of the complaint and was
requested to submit rent records to prove the lawfulness of the
rent being charged. In answer to the complaint, the former owner
submitted the complete lease history from the base date of June
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30, 1974. The former owner further claimed two 4% hardship
increases that were incorporated into the leases executed
subsequent to a 1975 hardship order of the Conciliations and
Appeal Board (CAB), the agency enforcing rent laws prior to the
Division of Housing and Community Renewal (DHCR).
Subsequently, the Administrator contacted the current and prior
owners for a copy of the CAB order granting the hardship increase
or its docket number.
In Order Number 29,115, issued on February 17, 1987, the Rent
Administrator determined that the tenant had been overcharged in
the amount of $1,671.74 through June 30, 1986, including excess
security and interest accrued for overcharges collected after
April 1, 1984. The Administrator determined the legal rent as
the rent actually charged for the three-year lease terms
commencing July 1, 1975 and July 1, 1978. However, overcharges
of $26.00 and $26.92 per month were found for the two subsequent
lease terms commencing July, 1981 and July, 1984, respectively.
The order further declared that the current and former owners
failed to submit the opinion number for the claimed hardship
increases and therefore no such increases would be included in
calculating the legal rent.
In its petition, dated March 20, 1987, the current owner contends
that it was improper for the Administrator to fail to include the
two hardship increases, which had been granted ten years and
seven years before the current owner acquired its interest on the
property in 1986. The owner requests the complete record of all
hardship increases for the subject-building between 1970 and
1980, or, in the alternative, additional time to obtain the
hardship order from DHCR records.
The Commissioner is of the opinion that this petition should be
granted in part.
In the instant case, the Administrator denied the hardship
increases that were claimed by both the current and prior owners
because they did not cite the docket number of the CAB hardship
order or produce a copy of it. However, the tenant confirmed
that there was a hardship increase in 1975, The fact that the
order could not be immediately identified, does not mean that the
Administrator could ignore its existence. It has been held that
the DHCR has an obligation to maintain its own records, and that
these must be consulted to resolve controversies regarding the
rent history. In the instant case, the tenant acknowledges the
existence of the order, and the lease history contains two lease
riders signed by the tenant which explicitly permit the increase
for the leases commencing in 1975 and 1978, respectively. The
tenant has not answered the petition. Therefore, the record
sustains the inclusion of these hardship increases in calculating
the lawful rent. As a result, overcharges are reduced to
$153.34, from $1,671.74, as is documented in the rent
calculations chart affixed hereto and made a part hereof.
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 (12)
equal monthly installments. Should the tenant vacate after the
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issuance of this order, said arrears shall be payable
immediately.
THEREFORE, pursuant to the Rent Stabilization Law and Code, it
is
ORDERED, that this petition be, and the same hereby is, granted
in part; and that the Administrator's order be, and the same
hereby is amended in accordance with this order and opinion.
ISSUED:
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ELLIOT SANDER
Deputy Commissioner
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