ADM. REVIEW DOCKET NO.: BD 110472 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.:
BD 110472 RO
: D.R.O. DOCKET NOS.:
TC-064382-G
CDR 29,876
Tenant: Charles Szekely
FRESH MEADOWS ASSOCIATES
PETITIONER :
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ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
IN PART
On April 28, 198, the above-named petitioner-owner filed a
Petition for Administrative Review against an order issued on
April 15, 1987 by the Rent Administrator, 10 Columbus Circle, New
York, New York, concerning the housing accommodations known as
69-05 B 186 Lane, Fresh Meadows, New York, Apartment No. 2A
wherein the Rent Administrator determined that the owner had
overcharged the tenant.
The issue in this appeal is whether the Rent Administrator's
order was warranted.
The applicable section of the Law is Section 2526.1 of the
Rent Stabilization Code.
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 in July 1982 by the
filing of a rent overcharge complaint by the tenant who took
occupancy of the subject apartment on June 17, 1980.
The owner was served with a copy of the tenant's complaint
and submitted a complete rental history as required.
In Order Number CDR 29,876, the Rent Administrator determined
that the tenant had been overcharged in the amount of $1586.64
through March 31, 1987 and directed the owner to refund such
overcharge to the tenants. The Administrator further determined
that the owner was entitled to a rent increase of $113.98 (1/40 of
$4559.32-total cost of improvements made in the subject apartment)
effective June 17, 1980, that the lawful stabilization rents
effective July 1, 1986 was $697.25 and that the actual rent
charged by the owner effective July 1, 1982 to June 30, 1985 was
ADM. REVIEW DOCKET NO.: BD 110472 RO
$645.42.
In this petition the owner alleges in substance that the
amount of the rent increase due to the improvements should have
been calculated to be $119.79 - 1/40 of the total cost of $4791.52
rather than the figures of $113.98 - 1/40 of a total cost of
$4559.32 used by the Rent Administrator; that the owner actually
charged and collected a rent of $660.39 from July 1, 1982 through
June 30, 1985 rather than the $645.42 figure used by the Rent
Administrator; that the Rent Administrator erroneously
miscalculated the hardship increase to be 2.68% of the January 1,
1975 rent - $6.48 - and ignored the fact that the hardship
increase although granted in 1982 was retroactive to April 1, 1975
so that the owner should have been permitted to increase the 2.68%
hardship increase of $6.48 by the guideline increases up to July
1982 making the hardship increase $13.06 and that when these
factors are taking into account, the total overcharge would be
$1171.69 through March 31, 1987 and the lawful stabilization rent
effective July 1, 1986 would be $712.18.
In answer to the petition, the tenant alleges in substance
that from July 1, 1982 to June 30, 1985, he paid rent arrears of
$7.56 per month in addition to the monthly rent of $660.39 so that
the owner's computation of the permanent hardship increase as
being $13.06 is in error.
The Commissioner is of the opinion that this petition should
be granted in part.
An examination of the records in this case discloses that the
Rent Administrator incorrectly excluded from his calculation of
the total cost of the improvements some of the taxes (for the
refrigerator and dishwasher) and the installation cost of the
dishwasher to which the owner was entitled. However the
Administrator correctly found that the owner was not entitled to
$162.00 of a bill for $324.00 for part of the rewiring since this
amount was attributable to rewiring in apartment 3A. Accordingly
the rent increase for the improvements should have been listed as
$115.74 - 1/40 of a total cost of $4629.52 (owner's total of
$4791.52 minus the excluded amount of $162.00).
The records further show that the owner did not charge a
$645.42 monthly rent during the lease period from July 1, 1982
through June 30, 1985 as the Administrator found. Rather rent
ledgers and copies of rent bills disclose that the owner in fact
charged $660.39 plus a monthly payment of $7.56 due to hardship
arrears during this period.
In addition the records also disclose that pursuant to CAB
Docket Number CH-22, CAB Opinion Numbers, 21,082, 10195 and 20,599
issued on June 24, 1982 and incorporating a stipulation of
settlement, the owner was granted a hardship increase of 2.68% of
the rent charged on January 1, 1975 retroactive to April 1, 1975
with the owner consenting to the payment of the retroactive rent
arrears over a period of 36 months. In the instant case the
January 1, 1975 rent of the subject apartment was $241.88. 2.68%
of $241.88 = $6.48-the hardship increase. The retroactive period
ADM. REVIEW DOCKET NO.: BD 110472 RO
is from April 1, 1975 through June 30, 1982 - a period of 87
months. The retroactive rent arrears amount to $563.76 ($6.48 per
month x 87 months). This amount - $563.76 - is divided by 36
months to give a payment of the temporary retroactive portion of
the hardship increase of $15.66 per month during the period from
July 1, 1982 through June 30, 1985. The owner is also entitled to
the permanent hardship rent increase of $6.48 per month effective
July 1, 1982 and not a permanent increase of $13.06 as claimed on
appeal.
Taking the aforementioned factors into account, the
Commissioner has recalculated the lawful stabilization rents and
the amount of the rent overcharge for the subject apartment.
The lawful stabilization rents and amount of the rent
overcharge are set forth on the amended rent calculation chart
attached hereto and made a part hereof.
Because this determination concerns lawful rents only through
March 31, 1987, the owner is cautioned to adjust subsequent rents
to an amount no greater than that determined by this order plus
any lawful increases, and to register any adjusted rents with this
order and opinion being given as the explanation for the
adjustment.
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 is permitted to pay off the
arrears in six equal monthly installments.
This order may upon the expiration of the period in which the
owner may institute a proceeding pursuant to Article 78 of the
Civil Practice Law and Rules, be filed and enforced as a judgment
or not in excess of twenty percent per month thereof 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 in part and the Rent Administrator's order be and the same
hereby is, modified in accordance with this order and opinion.
The lawful stabilization rents are established on the attached
chart which is fully made a part of this order. The amount of the
rent overcharge through March 31, 1987 is $1658.32 and the lawful
stabilization rent effective July 1,1986 is $699.58 per month.
ISSUED:
ADM. REVIEW DOCKET NO.: BD 110472 RO
ELLIOT SANDER
Deputy Commissioner
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