ADM. REVIEW DOCKET NO.: BE 110149 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
APPEAL OF DOCKET NO.: BE 110149 RO
DRO DOCKET NO.:
PERSHING CRESCENT COMPANY
ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On May 15, 1987, the above-named petitioner filed a Petition
for Administrative Review against an order issued on October 14,
1986, by the District Rent Administrator concerning the housing
accommodation known as 141-30 Pershing Crescent, Queens, New
York, Apartment No. 1B wherein the District Rent Administrator
determined that the tenant had been overcharged.
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
provisions 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 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.
The issue in this appeal is whether the District Rent
Administrator's order was warranted.
This proceeding was originally commenced by the filing of a
rent overcharge complaint by the tenant on March 30, 1984.
The tenant took occupancy of the subject apartment on
February 1, 1981, pursuant to a three year vacancy lease at a
monthly rental of $456.04.
The owner was served with a copy of the complaint on
November 30, 1984, and was directed to submit a complete rental
history for the subject apartment from the base date including
copies of all leases as required by the Rent Stabilization Code.
In Order Number 24,532, As Amended the District Rent
Administrator determined that the owner had collected a rent
overcharge from the tenant. The Administrator established the
lawful stabilized rent based on the owner's failure to submit a
complete rental history for the subject apartment and directed a
refund of $10,676.94 including treble damages for overcharges
collected after April 1, 1984.
In this petition, the owner contends that the Division has
failed to provide the petitioner with a copy of the tenant's
complaint, thus violating the petitioner's due process rights. In
support of its contention the petitioner has submitted a copy of
a letter addressed to the Division requesting for a copy of the
tenant's complaint. The petitioner also asserts that the
imposition of treble damages is not justified and results in the
unjust enrichment of the tenant. Additionally, the petitioner
contends that the District Rent Administrator disregarded lease
documentation submitted by the petitioner in establishing the
lawful stabilized rent. Copies of the tenant's initial and
subsequent leases were submitted with the petition. Lastly, the
petitioner asserts that the District Rent Administrator erred by
not granting a hearing on the issue of the rent overcharge.
The tenant in response to the owner's petition asserts that
the owner's petition should be denied because the owner has
collected an overcharge and was afforded ample opportunity to
respond to the tenant's complaint. Additionally, the tenant
asserts that the owner did not file the petition within
thirty-five (35) days.
The Commissioner is of the opinion that this petition should
In the instant case, a search of the records reveals that
Pershing Crescent Company was served with a copy of the tenant's
complaint at the address listed on the owner's registration
statement filed with the Division. The owner has listed 40
Randall Ave., Freeport, NY as his address during the registration
years of 1991, 1990, 1989, 1987, 1986, 1985 and 1984, which is
the address used by the Administrator for the purpose of serving
the complaint and all subsequent notices.
Although, the petitioner alleges that he requested a copy of
the tenant's complaint, he has failed to provide the Division
with proof of mailing. The copy of the letter which was
submitted by the petitioner as proof of the request is not dated
and a copy of this letter is not among the contents of the
initial proceeding. The Commissioner notes that the petitioner
received a Final Notice of Pending Default dated July 17, 1986,
wherein the petitioner was requested to submit a complete rental
history for the subject apartment and advised that failure to
comply with this notice would result in the imposition of treble
damages. The owner without justificatin failed to submit leases
or rent ledgers. Therefore, the Commissioner finds that the
owner was given ample opportunity to respond and provide the
Division with a complete proper.
Section 42A of the Rent Stabilization Code requires that an
owner retain rent records for each stabilized apartment in effect
from June 30, 1974 to date and produce them to the Division of
Housing and Community Renewal upon demand. If the apartment was
decontrolled from Rent Control Law, the owner must provide
satisfactory documentary evidence of the apartment's date of
Therefore, the Commissioner finds that the owner has
defaulted in its obligation to provide a full rental history.
In 1982, the CAB adopted procedures to be used to determine
an apartment rent where an owner does not provide a complete
rental history of the apartment. In such case the rent is
established at the lowest of the following amounts:
1) The lowest stabilized rent for the same size apartment;
2) The current tenant's initial rent less any rent
adjustment for the tenant's initial lease, and
3) The prior tenant's last rent.
These procedures have been adopted by DHCR and upheld by the
In the instant case, the Administrator established the
lawful stabilization rent as follows:
1) the lowest stabilized rent for the same size apartment.
(apartment 2-B = $420.03).
2) the current tenant's initial rent ($456.04) minus a
guideline increase of 17% minus a vacancy allowance of
10% = $359.09.
3) the prior tenant's LAST rent = unknown.
Item number 2 results in the lowest amount, and was
therefore correctly adopted by the Administrator as the lowest
In reference to the petitioner's allegation that the
Administrator erred by not granting a hearing on the issue of
rent overcharge, a review of the records indicates that the owner
did not request a hearing throughout the review of the initial
proceeding. Additionally, the owner is advised that the granting
of a hearing is discretionary upon the part of the agency and is
warrranted only when a factual dispute requires oral testimony
and an examination of the credibility of witnesses for
resolution. A hearing on the issue of the rent overcharge was
Regarding the tenant's allegation that the owner's petition
was not filed within thirty-five days, a review of the records
indicates that CDR 24,532 was amended to reflect the correct name
of the owner and the amended order was sent to the owner on April
13, 1987. Thus, the owner's petition was filed within the
requisite thirty-five day period.
THEREFORE, pursuant to the Rent Stabilization Law and the
Emergency Tenant Protection Act, it is
ORDERED, that this petition be and the same hereby is
denied, and that the Administrator's order be, and the same
hereby is affirmed.