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.:
MARC PYSER, DISTRICT RENT
ORDER AND OPINION GRANTING TENANT'S PETITION FOR
ADMINISTRATIVE REVIEW IN PART AND REMANDING PROCEEDINGS
TO THE ADMINISTRATOR FOR FURTHER CONSIDERATION
On March 23, 1987, the above-named petitioner-tenant filed a
Petition for Administrative Review (PAR) against an order issued
on February 20, 1987, by the Rent Administrator at the Hempstead
District Rent Office, concerning the housing accommodations known
as 190 West Merrick Road, Freeport, New York, wherein the
Admin-istrator determined the tenant's overcharge complaint.
The applicable law is Section 2502.5 and 2502.6 of the Tenant
The issue in these proceedings is whether the Administrator's
order was proper.
The tenant commenced the proceedings on April 14, 1986 ques-
tioning the rent.
The owner responded by submitting a copy of the tenant's initial
lease, effective December 20, 1984 to June 30, 1986, at a rent of
$520.94 per month, a copy of the subject tenant's present lease,
effective July 1, 1986 to June 30, 1987, at a rent of $544.38 per
month, and a copy of the prior tenant's lease, effective May 1,
1984 to June 30, 1986, at a rent of $436.11 per month from May 1,
1984 to May 31, 1984, at $493.52 per month from June 1, 1984 to
June 30, 1986.
The Administrator also requested the owner to submit the lease in
effect before the prior tenant's last lease, due to the fact that
the prior tenant's last lease was incomplete. A second and
final notice was forwarded to the owner outlining the Division's
options for determining the subject tenant's legal regulated rent
if the landlord failed to respond. The owner did respond that
the premises were recently purchased, and that it did not have a
In a separate lease renewal determination, the Administrator had
found that the owner had failed to renew the tenant's lease on
the proper form, or in a timely manner, as prescribed by the
Regulations. The owner was barred from collecting the guideline
increase of $23.44 per month, for the lease effective July 1,
1986 to June 30, 1987; from July 1, 1986 to December 31, 1986.
The owner would be eligible to collect the guideline increase
90 days after the date the landlord offers the lease to the
tenant on the prescribed form. The order was dated January 1,
1987 and issued under Docket No. FA-J-710008-RV.
Based on the record, the Administrator established the tenant's
initial rent based on the last rent paid by the prior tenant
without any guideline adjustment for leases commencing prior to
the date of the Administrator's order, February 20, 1987 at
$493.52 through June 30, 1986, and computed overcharges for the
period through June 30, 1986, as follows:
Excess collected from December 20, 1984 to June 30, 1986
$502.94 -$493.52 x 19 months = $520.98.
In addition the Administrator computed overcharges based on the
renewal lease rent of $544.78 and the assumption that the tenant
had paid rent in excess of the $520.94 adjusted rent establish
that the lease renewal proceedings under Docket No. FA-J-
710008-RV, noted above, as follows:
$544.38 -$493.52 x 8 months = $406.88.
The total refund was established at $927.86 subject to an
adjust-ment if the tenant did pay the rent as adjusted in the
lease renewal proceedings.
The tenant challenges the Administrator's determination arguing
that the vacancy lease rent should have been computed based on
the lower amount ($436.11) of the prior tenant's two-tier final
lease rather than the final rent of $493.52. The petitioner also
requests whether it is entitled to additional excess charges
including treble damages, and asks whether the lease period
should be recalculated.
After careful consideration, the Commissioner is of the opinion
that the petition should be granted in part.
Section 35(6) of the former Tenant Protection Regulation provided
"Lease upon vacancy prior to expiration of prior
lease term. Where a lease for a one, two or three
year term commenced on or after the local
effec-tive date, and the tenant vacates prior to
the expiration of the one, two or three year term,
the legal regulated rent in effect under the lease
shall continue in effect for the remainder of the
lease term. Upon the renting to a new tenant, the
landlord shall provide to tenant and execute a
valid written lease for a one or two year term, at
the tenant's option. . ."
The regulations further provided for appropriate rate adjustments
for the new leases.
Section 2502.5 of the present Tenant Protection Regulations
superceding Section 35(6) effective July 1, 1983, provides in
essence, that no lease fixing a rent pursuant to a guidelines
board increase shall provide for any adjustment during its term,
except in certain limited conditions, not applicable herein.
The Administsrator appears to have permitted the prior tenant's
final rent to serve as the base rent for the vacancy lease
without establishing how the owner arrived at that rent. Although
not specifically set forth in the order below, the Administrator
appears to have concluded that the owner utilized superceded
regulations that permitted adjustment during the term of the
lease. Consequently the matter should be remanded to the
Administrator to ascertain if the owner utilized the proper base
rent for the tenant's vacancy lease.
In this regard, the Commissioner notes that an owner is required
to maintain and produce a complete rental history subject to the
provisions of the regulation and to respond to the tenant's
com-plaint. A change of ownership, doesn't relieve an owner from
the obligation to produce relevant leases or other business
On remand, the Administrator shall also ascertain if the security
deposit required by the owner was excessive. At the
Administra-tor's discretion, the issue of treble damages may be
In light of the separate lease renewal proceedings, noted above,
the petitioner's request that the lease period be adjusted need
not be considered herein.
THEREFORE, in accordance with the Emergency Tenant Protection
Act, and the Tenant Protection Regulations, Chapter 403 of the
Laws of 1983, and Chapter 102 of the Laws of 1984, as
imple-mented by Operational Bulletin 84-1, it is
ORDERED, that the tenant's petition be, and the same hereby is,
granted in part; and that the proceeding be remanded to the
Ad-ministrator for further consideration. Pending a
determination by the Administrator on remand, the determination
below remains in full force and effect.