BD 410501-R0
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 NOS.:
BD 410501-RO
SOLIL MANAGEMENT CORP., DRO DOCKET NOS.:
L 3114829-R; CDR 29456
PETITIONER TENANT: ROBIN MC CABE
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE
AND MODIFYING DISTRICT RENT ADMINISTRATOR'S ORDER
On April 30, 1987, the above-named petitioner-owner filed a
Peti-tion for Administrative Review against an order issued on
April 13, 1987, by the District Rent Administrator, 10 Columbus
Circle, New York, New York concerning the housing accommodations
known as Apartment 14-C, at 160 West 73rd Street, New York, New
York wherein the District Rent Administrator determined that the
owner had overcharged the tenant.
The Commissioner notes that this proceeding was filed prior to
April 1, 1984. Sections 2526.1(a)(4) and 2521.1(d) of the Rent
Stabilization Code (effective May 1, 1987) governing rent
over-charge and fair market rent proceedings provide that
determina-
tion of these matters be based upon the law or code provisions in
effect on March 31, 1984. Therefore, unless otherwise indicated,
reference to sections of the Rent Stabilization Code (Code) con-
tained herein are to the Code in effect on April 30, 1987.
The issue in this appeal is whether the 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
Stabili-zation Code and Section 42A 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 March,
1984 of a rent overcharge complaint by the tenant, in which she
stated that she had commenced occupancy on May 16, 1976 at a rent
of $260.15 per month.
The owner was served with a copy of the tenant's complaint and
was requested to submit rent records to prove the lawfulness of
the rent being charged. In answer to the complaint, the owner
submitted only leases from 1981, and a Landlord's Report of
Stat-utory Decontrol showing that the subject apartment became
subject to Rent Stabilization on April 1, 1975. The owner stated
that it had acquired the subject premises on July 22, 1982, and
that it had not received any other records for the subject
apartment. The copy of the tenant's complaint sent to the prior
owner Lesim Realty was returned as undeliverable.
In an order issued on April 13, 1987 the District Rent
Adminis-trator set the tenant's lawful initial rent using the
Division of Housing and Community Renewal's (DHCR) default
procedure, deter-mined that the tenant had been overcharged in
the amount of $5,111.95 as of September 30, 1986, and directed
the owner to refund such overcharge to the tenant as well as to
reduce the rent. The prior owner was directed to make refunds to
the tenant for those overcharges collected by it. The copy of
the order sent to the prior owner was also returned as
undeliverable.
In this petition, the owner contends in substance that the
Admin-istrator was incorrect in stating that it "has failed to
provide a full rental history for the subject apartment although
requested to do so," since it submitted proof of statutory
decon-trol, and since the prior owner did not furnish it with the
lease effective April 1, 1975. With its petition the owner has
submit-ted materials already contained in the Administrator's
file.
The Commissioner is of the opinion that this petition should be
denied, and that the District Rent Administrator's order should
be modified.
Section 42A of the former Rent Stabilization Code requires that
an owner retain complete rent records for each stabilized apart-
ment in effect from June 30, 1974 to date and produce them to the
DHCR upon demand. If the apartment was decontrolled from the
Rent Control Law after June 30, 1974 the owner must provide
satisfactory documentary evidence of the apartment's date of
decontrol, and produce a rental history from that date.
In the present case, the owner was directed to submit a complete
rental history. While the owner submitted evidence that the base
date was April 1, 1975, it did not submit any evidence of the
base date rent, so it has not been shown that the complainant's
initial rent on May 16, 1976 represented a lawful increase over
the base date rent. Because the owner had defaulted in its
ob-ligation to make available a full rental history from the base
date to justify the rents charged, it was proper for the Admin-
istrator to use established DHCR procedures to set the default
rent.
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 by the tenant
in the same manner as a judgment or not in excess of 20% thereof
per month may be offset against any rent thereafter due the
owner. Because the owner acquired the subject premises on July
22, 1982, the Administrator's order should be modified to state
that the owner is responsible for the overcharges of $2,408.00 on
and after July 22, 1982. Although the Administrator's order
directed the prior owner Lesim Realty at 515 Madison Avenue to
make refunds for those overcharges collected by it, the
Commis-sioner notes that both the complaint and the order sent to
Lesim Realty were returned by the postal service.
Because of the possibility that the rents charged were not
reduced after the Administrator's order, the owner is cautioned
to adjust the rent, in leases after those considered by the
Administrator, to amounts no greater than that determined by the
Administrator's order plus any lawful increases, and to register
any adjusted rents with the Administrator's order being given as
the reason for the adjustment. Because of the possibility that
the tenant herein may have vacated by the time that this
deter-mination is issued, a copy of this determination is being
mailed to the tenant-in-occupancy.
THEREFORE, in accordance with the Rent Stabilization Law and
Code, it is
ORDERED, that this petition be, and the same hereby is, denied
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 rent is $337.56 as of September 30,
1986. The total overcharge attributable to Solil Management
Corporation is $2,408.00 as of September 30, 1986.
ISSUED:
ELLIOT SANDER
Deputy Commissioner
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