ADM. REVIEW DOCKET NO.: BD 410508 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 410508 RO
: D.R.O. DOCKET NOS.:
L-3113650-R
CDR 29,245
MILFORD MANAGEMENT CORP., FOR
LINCOLN PLAZA ASSOCIATES,
TENANT: IRMA KINGSLEY
PETITIONER :
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ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
On April 9, 1987 the above-named petitioner-owner filed a
Petition for Administrative Review against an order issued on
March 5, 1987 by the District Rent Administrator, 10 Columbus
Circle, New York, New York concerning housing accommodations
known as Apartment 35-U at 20 West 64th 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
overcharge and fair market rent proceedings provide that
determination of these matters be based upon the law or code
provision in effect on March 31, 1984. Therefore, unless
otherwise indicated, reference to Sections of the Rent
Stabilization Code (Code) contained herein are to the Code in
effect on April 30, 1987.
The issue in this appeal is whether the District Rent
Administrator's order was warranted.
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 by the filing of a rent
overcharge complaint on February 21, 1984 by the tenant, in which
she stated that she first occupied the apartment in March, 1973,
under a lease that commenced March 15, 1973 and terminated March
31, 1975, at a rent of $430.00.
The owner was served with a copy of the complaint and was
requested to submit rent records to prove the lawfulness of the
ADM. REVIEW DOCKET NO.: BD 410508 RO
rent being charged. In answer to the complaint, the owner
submitted a complete rental history from the base date as
required.
In Order Number CDR 29,245, the District Rent Administrator
determined that the tenant had been overcharged in the amount of
$456.08 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 overcharge, in that it was entitled to collect a 2%
fuel cost adjustment beginning on March 1, 1979 in addition to 6
1/2% for the tenant's two-year renewal lease commencing April 1,
1979; that all of the Administrator's calculations from that lease
term forward are inaccurate, due to the omission of the 2% fuel
adjustment.
In answer to the petition, the tenant contended that the
Guideline 10(b) fuel adjustment was extended beyond the allowable
lease term, and that the increase on all succeeding leases has
been based erroneously on the total of the rent plus the fuel
adjustment increase.
The Commissioner is of the opinion that this petition should
be granted.
A review of the record indicates an error in the
Administrator's rent calculation chart resulting not from the
omission of the fuel surcharge, which was calculated separately
from the overcharge, but from utilizing an incorrect amount as the
amount charged for the tenant's lease commencing April 1, 1979.
The Administrator used the amount of $535.52 as the rent charged
for that lease and as the base rent for calculating the lawful
stabilized rent for the subsequent lease, rather than the correct
amount of $540.59, which included the 1% Guideline 10a increase
and which was the amount actually charged (not including the fuel
adjustment).
It is further found that the Administrator's separate
calculation of the fuel surcharge did not correctly reflect the
amount charged by the owner and to which the owner was entitled.
The owner collected and was entitled to a 2% increase pursuant to
Guideline 10b for the tenant's lease term from April 1, 1979 to
March 31, 1981. Regarding the tenant's contention that the
Guideline 10b fuel adjustment was extended beyond the allowable
lease term, the Commissioner finds that the evidence of record
supports the petitioner's contention that it properly applied the
2% Guideline 10b fuel adjustment for only the lease period from
April 1, 1979 through March 31, 1981.
The lawful stabilization rent is recalculated on the attached
rent calculation chart, which is fully made a part of this order.
No overcharge is found.
If the owner has already complied with the Administrator's
ADM. REVIEW DOCKET NO.: BD 410508 RO
order and there are arrears due to the owner as a result of the
instant determination, the tenant may pay the arrears in twelve
(12) equal monthly installments. Should the tenant vacate after
the issuance of this order, said arrears shall be payable
immediately.
THEREFORE, pursuant to the Rent Stabilization Law and Code,
it is
ORDERED, that this Petition be, and the same hereby is,
granted, and that the Administrator's order be, and the same
hereby is, revoked.
ISSUED:
ELLIOT SANDER
Deputy Commissioner
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