ADM. REVIEW DOCKET NO.: BD 410487-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
------------------------------------X
IN THE MATTER OF THE ADMINISTRATIVE : ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.: BD 410487-RO
: D.R.O. DOCKET NO.: 41560
F.R.H. REALTY CO., INC.,
TENANT: PATRICK WALDRON
PETITIONER :
------------------------------------X
ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
IN PART
On April 20, 1987 the above-named petitioner-owner filed a
Petition for Administrative Review against an order issued on
March 17, 1987 by the District Rent Administrator, 10 Columbus
Circle, New York, New York concerning housing accommodations
known as Apartment 4E at 405 East 72nd Street, New York, 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 Section 26-516 of the
Rent Stabilization Law, Section 2526.1(a) of the current Rent
Stabilization Code and Section 21 of the former 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 by the filing in
December, 1984 of a Tenant's Objection to Rent/Services
Registration.
The owner was served with a copy of the objection and was
requested to submit rent records to prove the lawfulness of the
rent being charged. In answer to the complaint, the owner
submitted leases from 1975 and rent ledgers from January 1980 to
December, 1984; and stated that the rent of $498.56 in the lease
commencing December 1, 1981 included a fuel charge of $12.00 and
an additional 5% subletting charge of $20.37. The ledgers
ADM. REVIEW DOCKET NO.: BD 410487-RO
mentioned periods of sublet and showed an increased rent charged
during them.
In an order issued on March 17, 1987 the District Rent
Administrator stated that the owner had failed to submit proof of
sublet; determined that the tenant had been overcharged in the
amount of $2,056.15 as of November 30, 1986; and directed the
owner to refund such overcharge to the tenant as well as to reduce
the rent.
In this petition, the owner contends in substance that there
was no rent overcharge in that it is now submitting evidence of
subletting. With its petition the owner has enclosed several
letters from the tenant regarding subletting as well as a 1982
check from a subtenant.
The Commissioner is of the opinion that this petition should
be granted in part.
The $441.79 rent being charged on the April 1, 1980 base date
consisted of a permanent rent of $403.52 pursuant to a lease
commencing December 1, 1978 as retroactively increased to $407.57
when Guideline 10a was issued; a $20.18 (5%) subletting allowance;
a $2.04 fuel cost adjustment pursuant to Guideline 10b; and a
$12.00 fuel cost adjustment pursuant to Guideline 10c. Section
21B of the former Rent Stabilization Code provided that upon
termination of the sublease the stabilization rent would revert to
the renewal lease basis. Guidelines 10b, 10c and 10d provided
that the fuel cost adjustments were temporary and did not become
part of the base rent. Taking these factors into account, the
Commissioner has recalculated the lawful stabilization rents and
the amount of overcharge. They are set forth on the amended rent
calculation chart attached hereto and made a part hereof. The
overcharge occurred largely because the owner included the
temporary Guideline 10b fuel cost adjustment and the temporary
subletting allowance in the base rent in calculating the 1981
renewal lease. This order differs from the Administrator's order
largely because that earlier order took the original December 1,
1978 lease rent to be the permanent rent in effect on the April 1,
1980 base date, even though Guideline 10a had increased the lawful
rent above that initially provided for in the lease. This order
also finds a different overcharge during a 1982 subletting by
referring to the rents shown in the rent ledger, while the
Administrator's order assumed that only the lease rent was paid
from 1981 to 1984.
Because this order determines the lawful rent only through
November 30, 1986, the owner is cautioned to adjust the rent after
that date to amounts no greater than that determined by this order
plus any lawful increases, and to register any adjusted rents with
this order being given as the reason for the adjustment. Because
ADM. REVIEW DOCKET NO.: BD 410487-RO
of the possibility that the tenant herein may have vacated by the
time that this determination is issued, a copy of this
determination is being mailed to the tenant-in-occupancy.
If the owner has already complied with the Administrator's
order and there are arrears due to the owner as a result of the
present determination, the owner is directed to allow the tenant
to pay off the arrears in six equal monthly installments. Should
the tenant vacate after the issuance of this order, or have
previously vacated, said arrears shall be payable immediately.
This order may, upon the expiration of the period in which
the owner may institute a proceeding pursuant to Artic e seventy-
eight of the civil practice law and rules, be filed and enforced
by the tenant in the same manner 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 Opinion. The lawful stabilization rents and the amount of
overcharge are established on the attached chart, which is fully
made a part of this order. The total overcharge, including excess
security of $28.10, is $1,710.86 as of November 30, 1986.
ISSUED:
ELLIOT SANDER
Deputy Commissioner
ADM. REVIEW DOCKET NO.: BD 410487-RO
|
