BD 510097-RT; BD 410284-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
APPEAL OF ADMINISTRATIVE REVIEW
DOCKET NOS.: BD 510097-RT
BD 410284-RO
PARK WEST
MANAGEMENT CORPORATION, OWNER DRO DOCKET NOS.: L-3114469-R
AND CDR 29434
KENNETH MACLEOD, JR., TENANT,
PETITIONERS
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ORDER AND OPINION GRANTING PETITIONS FOR ADMINISTRATIVE REVIEW IN PART
On April 1, 1987 the above-named petitioner-owner, and on April
12, 1987 the above-named petitioner-tenant, filed Petitions for
Administrative Review against an order issued on March 12, 1987
by the District Rent Administrator, 10 Columbus Circle, New
York, New York concerning housing accommodations known as
Apartment 16D at 400 Central Park West, 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 applicable sections of the Law are Section 26-516 of the
Rent Stabilization Law and Section 2526.1(a) of the current 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 he
BD 510097-RT; BD 410284-RO
stated that he had commenced occupancy on April 19, 1979 at a
rent of $ 581.88 per month.
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. In answer to the complaint, the owner
submitted a complete rental history from the base date as
required.
In an order issued on March 12, 1987 the District Rent
Administrator determined that the tenant had been overcharged in
the amount of $1,093.01 as of March 31, 1985, and directed the
owner to refund such overcharge to the tenant as well as to
reduce the rent.
In its petition (Docket No. BD 410284-RO) against the order, the
owner contends in substance that the District Rent
Administrator's order failed to take into account the full amount
of increases due to new equipment as well as Guidelines increase
based on the equipment cost, and that the Administrator's order
reflects overcharges on amounts that were actually refunded to
the tenant after the Supreme Court reversed a hardship increase.
With its petition the owner has enclosed rent rolls for a number
of months in 1980, 1985, 1986 and 1987.
In his petition (Docket No. BD 510097-RT), the tenant asserts in
substance that the order should take into account leases after
the last one considered by the Administrator. With his petition
the tenant has enclosed two 2-year lease renewals commencing in
1985 and 1987. In answer, the owner asserts that it received
only the "Affidavit of Service" page of the tenant's petition
and should be sent the remainder. This has not been done since
the leases simply duplicate information registered with the
Division of Housing and Community Renewal (DHCR) by the owner,
and since the tenant's request to consider leases after 1985
could have been done at the Administrator's own initiative.
The Commissioner is of the opinion that these petitions should be
granted in part.
In the proceeding before the Administrator the owner submitted
invoices and bills of lading for several hundred air conditioners
and air coolers of several different models and prices. The
Administrator gave the owner credit for one each of three
different models. The owner on appeal claims two units of the
most expensive model, purchased two years prior to the time the
complainant commenced occupancy, and one unit of another model
purchased 22 months prior. Although the owner is claiming to
enclose a copy of its earlier answer, most of the invoices for
the units now claimed were not submitted earlier, and most of the
air conditioner and air cooler invoices used for the
Administrator's determination are not included in what is
purported to be a copy of the earlier answer. Because of these
factors and the fact that the owner has not submitted any work
orders or other evidence of the installation of any particular
models in the subject apartment, the Commissioner does not find
sufficient justification for changing the Administrator's
determination as to which units were installed.
BD 510097-RT; BD 410284-RO
The Administrator was correct in adding the $29.61 increase for
new equipment to the complainant's vacancy rent after calculating
the vacancy rent on the basis of a previous rent of $463.19.
Guidelines 10 and 10a are applied to the rent charged and paid as
of June 30, 1978, the last day of the previous Guidelines period.
The new equipment charge was not paid as of June 30, 1978, and in
fact had never been paid by any tenant at any time, so the
Guidelines 10 and 10a increase did not apply to it.
Both the tenant and the owner agree that the initial $581.88
lease rent was reduced, retroactively by a refund, to $547.98, so
the Administrator should not have calculated overcharges on the
basis of a rent of $581.88. The Administrator's rent calculation
chart also did not show the tenant as paying a $12.00 Guideline
10c fuel surcharge, despite the rent bills submitted by the
tenant showing that he had done so. (While the tenant's
complaint and rent bills show the owner as having continued to
charge the Guideline 10c surcharge for 3 months of the next
lease, and then charging the Guideline 10d surcharge of $8.00 for
a further 3 months, the tenant's complaint indicated that this
overcharge of $60.00 was refunded as a credit on his November,
1980 rent bill.) The Guideline 10b fuel surcharge should have
been calculated as 2 1/2% of the March 1, 1979 lawful rent of
$463.19 and not of the complainant's April 1, 1979 vacancy rent.
The Administrator also failed to take into account the $8.00
Guideline 11a fuel surcharge which the tenant's rent bills showed
him to have paid. 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.
At the time that the Administrator's order was issued, DHCR
records contained an apartment registration showing the tenant as
having a lease through March 31, 1987 at a rent of $777.68. This
has been confirmed by the lease submitted by the tenant and the
rent roll submitted by the owner. The Commissioner finds it
appropriate to calculate overcharges through March 31, 1987, the
month of the Administrator's order as well as the last month of
that lease. No overcharge has been calculated in the next lease,
as the Administrator's order of March 12, 1987 would not have
been able to calculate overcharges on rents not yet paid in a
lease not yet in effect.
Because this order determines lawful rents and overcharges only
through March 31, 1987, the owner is cautioned to adjust the rent
in leases 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. If the owner does not do so, the
tenant should file an overcharge complaint, referring to this
order. Because of the possibility that the tenant may have
vacated prior to the issuance of this order, a copy thereof is
also being mailed to the tenant-in-occupancy.
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
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
BD 510097-RT; BD 410284-RO
rent thereafter due the owner.
THEREFORE, in accordance with the Rent Stabilization Law and
Code, it is
ORDERED, that these petitions be, and the same hereby are,
granted in part and that the 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 set forth on the attached rent calculation chart,
which is fully made a part of this order. The total overcharge
for the period through March 31, 1987, excess security of $15.86,
is $1,296.35.
ISSUED:
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JOSEPH A. D'AGOSTA
Deputy Commissioner
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