ADM. REVIEW DOCKET NO.: BE 410008 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.: BE 410008 RO
: RENT ADMINISTRATOR'S DOCKET
NO.: L-3114916-R
CDR 29,899
AVON BARD CO. TENANTS: DELIA MARSHALL
PETITIONER : RUTH PAGANI
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ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
IN PART
On May 1, 1987 the above named petitioner owner filed a
Petition for Administrative Review against an order of the Rent
Administrator, 10 Columbus Circle, New York, NY issued April 15,
1987. The order concerned housing accommodations known as Apartment
8F located at 320 East 22nd Street, New York, N.Y. The
Administrator determined that the tenant had been overcharged and
calculated the total overcharge at $3765.04 including interest and
excess security.
The Commissioner has reviewed the record and carefully
considered that portion relevant to the issues raised by this
appeal.
The Commissioner notes that this proceeding was initiated
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.
This proceeding was commenced on March 28, 1984 by the filing
of a rent overcharge complaint. The tenants stated that they took
occupancy of the subject apartment on October 31, 1983 pursuant to
a one year vacancy lease at a monthly rental of $1300 per month.
The owner was served with a copy of the complaint and
afforded an opportunity to respond. The owner submitted a
response stating that the building became subject to rent
ADM. REVIEW DOCKET NO.: BE 410008 RO
stabilization in 1980 as a result of the conversion of commercial
units to residential units pursuant to the J-51 program. Copies
of leases and/or rent ledgers from July 1980 through October 1983
were also submitted. The owner explained that a vacancy lease was
signed on September 1, 1982 because the parties to the prior
renewal lease had changed.
The Administrator's order stated that as a result of the
owner's failure to interpose a response to the complaint, the
tenants' rent history and allegations were admitted as factual.
The Administrator found that since the owner had failed to
substantiate the installation of new equipment no increase
pursuant to Section 20C(1) of the former Rent Stabilization Code
was allowed. The order also stated that, pursuant to Section
20A(4) of the former Code, the owner could not increase the rent
until June 30, 1982, the date of expiration of the first
stabilized lease. The lawful rent was established at $1,089.92
for the lease from October 17, 1983 to February 28, 1985 and the
owner was directed to refund $3,765.04, including excess security
and interest.
On appeal the owner states that a proper answer to the
complaint was sent to the Administrator on three separate
occasions. Proof of mailing is enclosed. Based on this
information the owner requests reversal of the Administrator's
order. The tenant did not file a response.
After a careful review of the evidence in the record the
Commissioner is of the opinion that the petition should be
granted in part.
A review of the record reveals that the Administrator's
determination was based on a complete rental history that included
the leases and rent ledgers that the owner enclosed with the
petition. Although the order stated that the owner did not
respond to the complaint, a response was actually received and
considered. The Commissioner notes however, that this proceeding
does not involve any factual dispute regarding the rental history.
The Administrator determined the lawful stabilized rents and
overcharges owed to the tenants. The Administrator ruled that the
owner was prohibited from taking guideline increases from October
1, 1980 until July 1, 1982 pursuant to Section 20A(4) of the Code.
However, this ruling was in error. Section 20A(4), as set forth
in the Administrator's order, is applicable to "those dwelling
units which were subject to the City Rent Law on June 30, 1974."
However, this is not the case with the apartment which is the
subject of this proceeding. Indeed, this building became subject
to rent stabilization due to its status as a "J-51" building. The
New York City Rent Law was never applicable to this apartment.
ADM. REVIEW DOCKET NO.: BE 410008 RO
Appropriate guideline increases should have been granted for the
leases commencing October 1, 1980 and October 1, 1981.
The Commissioner has recalculated the rent in the annexed
Rent Calculation Chart, which is made a part of this order and
opinion. An overcharge still exists in the amount of $2532.81
including interest and excess security. The Administrator's order
is modified to reflect this lesser amount.
Because this determination concerns lawful rents only through
the date of February 28, 1985 used in the Administrator's order
being appealed, the owner is cautioned to adjust subsequent rents
to an amount no greater than that determined by this order plus
any lawful increases, and to register any adjusted rents with this
Order and Opinion being given as the explanation for the
apartment. A copy of this order is being sent to the tenant now
in occupancy.
This order may be docketed and enforced in the same manner as
a judgment of the Supreme Court.
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 Rent Administrator's order be, and
the same hereby is, modified in accordance with this order and
opinion.
ISSUED:
JOSEPH A. D'AGOSTA
Acting Deputy Commissioner
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