BD 110533 RO
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.: BD 110533 RO
JOSE MERCADO, D.R.O. DOCKET NO.: Q 3121053 R
TENANT: BENJAMIN MILLER
ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
On April 3, 1987, the above named petitioner-owner timely refiled
a Petition for Administrative Review against an order issued on
October 17, 1986, by the District Rent Administrator, 10 Columbus
Circle, New York, New York, concerning housing accommodations
known as Apartment 2J, 162-21 Powells Cove Boulevard,
Beechhurst, New York, wherein the District Rent Administrator
determined that the owner had overcharged the tenant.
The issue in this appeal is whether the District Rent
Administrator's order was warranted.
The applicable sections of the law are Sections 2522.4 and 2526.1
of the Rent Stabilization Code and Rent Guidelines Board Order
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 commenced on March 23, 1984, by the tenant's
filing of a rent overcharge complaint with the New York City
Conciliation and Appeals Board (CAB), the agency formerly charged
with enforcing the Rent Stabilization Law.
In its answer to the tenant's complaint, the owner submitted a
complete rental history for the subject apartment covering the
period from March 1, 1966 through April 30, 1986.
On July 23, 1986, the Division of Housing and Community Renewal
(DHCR) requested from the owner documentation, such as receipts
or cancelled checks, to substantiate the cost of the new
equipment installed in the subject apartment in 1978. The owner
did not respond to this request.
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In Order Number CDR 24,730 issued October 17, 1986, the District
Rent Administrator determined that the tenant had been
overcharged since May 1, 1978, and accordingly directed the owner
to refund to the tenant $3,650.50 which included excess security
and interest on that portion of the overcharge occurring on or
after April 1, 1984.
In this petition, the owner contends in substance that no
overcharge occurred, that a Major Capital Improvement (MCI)
increase was omitted from the Administrator's calculations, and
that it was entitled to collect an 8% increase pursuant to
Guidelines 8 for the lease term commencing from March 1, 1977
through August 31, 1978.
The tenant did not submit a response to the owner's petition.
The Commissioner is of the opinion that this petition should be
granted in part.
The CAB, in Opinion Number 3484 (Docket Number OM-629) issued
June 12, 1975 granted the owner an MCI increase of 1.55% in the
stabilization rent for the subject apartment effective October 5,
1973. A review of the record indicates that the Administrator
failed to include the above-mentioned increase when calculating
the lawful stabilization rent for the lease term commencing March
Rent Guidelines Board Order Number 8 provides in pertinent part
that any lease or tenancy for a period over one year and up to
and including two years shall be deemed a two year lease except
as to leases on vacant apartments. An examination of the rental
history for the subject apartment indicates that the prior tenant
entered into an eighteen month renewal lease commencing on March
1, 1977 during the term of Rent Guidelines Board Order Number 8
which authorized an 8% rent increase for a two year lease. The
Administrator incorrectly considered this lease term as a one
year lease and limited the owner to a 6.5% rent increase.
Based on the foregoing, the Commissioner has recalculated the
lawful stabilization rents and amounts of overcharge on the
amended rent calculation chart attached hereto and made a part
Because this determination concerns lawful rents only through the
date of April 30, 1986 used in the Administrator's order being
appealed, 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
If the owner has already complied with the District Rent
Administrator's order and there are arrears due to the owner as a
result of the instant determination, the tenant shall be
permitted to pay off the arrears in twenty-four equal monthly
installments beginning with the first rent payment date after
issuance of this order and opinion. Should the tenant vacate
after the issuance of this order or have already vacated, said
BD 110533 RO
arrears shall be payable immediately.
This order may, upon the expiration of the period in which the
owner may institute a proceedi g pursuant to Article Seventy-
Eight of the Civil Practice Law and Rules, be filed and enforced
as a judgment or not in excess of twenty percent thereof per
month 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 that the District Rent Administrator's order be, and
the same hereby is, modified in accordance with this Order and
The lawful stabilization rents and amounts of overcharge are
established on the attached chart which is fully made a part of