BD 210531 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
DOCKET NO.: BD 210531 RO
DRO DOCKET NO.: K 3107032 R
TENANT: BEATRICE NEALY
ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
On April 30, 1987, the above-named petitioner-owner refiled a
Petition for Administrative Review of an order issued on
September 18, 1986, by the Rent Administrator, 10 Columbus
Circle, New York, New York, concerning housing accommodations
known as 90-40 Fort Hamilton Parkway, Brooklyn, New York,
Apartment No. 4G, wherein the Rent Administrator determined that
the owner had overcharged the tenant.
The Administrative Appeal is being determined pursuant to the
provisions of Section 2526.1 of the Rent Stabilization Code.
The issue herein is whether the Rent Administrator's order was
The Commissioner has reviewed all of the evidence in the record
and has carefully considered that portion of the record relevant
to the issues raised by the administrative appeal.
This proceeding was commenced on February 10, 1984 by the filing
of a rent overcharge complaint by the tenant. With the
complaint, the tenant submitted her rental history.
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. The owner did not respond.
In Order Number 22,859 the Rent Administrator determined that the
owner was in default, due to the owner's failure to submit a
complete rental history, and that the tenant had been overcharged
in the amount of $4,689.11 including treble damages on
overcharges collected on or after April 1, 1984 and directed the
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owner to refund such overcharges to the tenant.
In this petition, the owner contends, in substance, that there is
no rent overcharge, and submits a copy of the rental history
from December 15, 1975 through December 31, 1986, which the owner
alleges was submitted during the proceeding before the
Administrator, in support of that contention.
The tenant did not respond to the owner's petition.
The Commissioner is of the opinion that this petition should be
Section 42A of the former Rent Stabilization Code requires that
an owner retain complete records for each stabilized apartment in
effect from June 30, 1974 (or the date the apartment became
subject to rent stabilization, if later) to date and to produce
such records to the DHCR upon demand.
Section 26-516 of Rent Stabilization Law, effective April 1,
1984, limited an owner's obligation to provide rent records by
providing that an owner may not be required to maintain or
produce rent records for more than 4 years prior to the most
recent registration, and concomitantly established a four-year
limitation on the calculation of rent overcharges.
It has been the DHCR's policy that overcharge complaints filed
prior to April 1, 1984 are to be processed pursuant to the law or
Code in effect on March 31, 1984. (See Section 2526.1(a)(4) of
the current Rent Stabilization Code.) The DHCR has therefore
applied Section 42A of the former Code to overcharge complaints
filed prior to April 1, 1984, requiring complete rent records in
these cases. In following this policy, the DHCR has sought to be
consistent with the legislative intent of the Omnibus Housing Act
(Chapter 403, Laws of 1983), as implemented by the New York City
Conciliation and Appeals Board (CAB), the predecessor agency to
the DHCR, to determine rent overcharge complaints filed with the
CAB prior to April 1, 1984 by applying the law in effect at the
time such complaints were filed so as not to deprive such tenants
of their right to have the lawful stabilized rent determined from
the June 30, 1974 base date and so as not to deprive tenants
whose overcharge claims accrued more than 4 years prior to April
1, 1984 of their right to recover such overcharges. In such
cases, if the owner failed to produce the required rent records,
the lawful stabilized rent would be determined pursuant to the
default procedure approved by the Court of Appeals in 61 Jane
Street Associates v. CAB, 65 N.Y.2d 898, 493 N.Y.S.2d 455 (1985).
However, it has recently been held in the case of J.R.D. Mgt. v.
Eimicke, 148 A.D.2d 610, 539 N.Y.S.2d 667 (App. Div. 2d Dep't
1989), motion for leave to reargue or for leave to appeal to the
Court of Appeals denied (App. Div. 2d Dep't, N.Y.L.J., June 28,
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1989, p.25, col. 1), motion for leave to appeal to the Court of
Appeals denied (Court of Appeals, N.Y.L.J., Nov. 24, 1989, p. 24,
col. 4), motion for leave to reargue denied (Court of Appeals,
N.Y.L.J., Feb 15, 1990, p. 25, col. 1), that the law in effect at
the time of the determination of the administrative complaint
rather than the law in effect at the time of the filing of the
complaint must be applied and that the DHCR could not require an
owner to produce more than 4 years of rent records.
Since the issuance of the decision in JRD, the Appellate
Division, First Department, in the case of Lavanant v. DHCR, 148
A.D. 2d 185, 544 N.Y.S.2d 331 (App. Div. 1st Dep't 1989), has
issued a decision in direct conflict with the holding in JRD.
The Lavanant court expressly rejected the JRD ruling, finding
that the DHCR may properly require an owner to submit complete
rent records, rather than records for just four years, and that
such requirement is both rational and supported by the law and
legislative history of the Omnibus Housing Act.
Since in the instant case the subject dwelling unit is located in
the Second Department, the DHCR is constrained to follow the JRD
decision in determining the tenant's overcharge complaint,
limiting the requirement for rent records to April 1, 1980.
An examination of the evidence of record indicates that the
parties provided the rental history from the base date of April
1, 1980, and that the finding of default by the Administrator was
erroneous, as follows:
January 1, 1979 though December 31, 1981: Base rent
$242.35 per month
January 1, 1982 through December 31, 1984: Three-year
renewal under Guidelines No. 13: $281.13 per month
January 1, 1985 through December 31, 1986: Two-year
renewal under Guidelines No. 16: $306.43 per month
The Commissioner finds that there were no overcharges collected
for these lease terms.
If the owner has already complied with the Rent 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 24 equal monthly installments. Should the tenant
vacate after the issuance of this order or have already vacated,
said arrears shall be payable immediately.
THEREFORE, in accordance with the provisions of the Rent
Stabilization Law and Code, it is
ORDERED, that this petition be, and the same hereby is, granted
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and that the Rent Administrator's order be, and the same hereby
is, revoked, and it is found that no rent overcharge occurred.
JOSEPH A. D'AGOSTA
Acting Deputy Commissioner