BE 410089 RT
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 410089 RT
ALBERT COHEN, DRO DOCKET NO.: Z 042381
OWNER: MILFORD MANAGEMENT
PETITIONER
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ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
IN PART
On May 21, 1987 the above-named petitioner-tenant filed a Petition
for Administrative Review against an order issued on April 17,
1987, by the Rent Administrator, 10 Columbus Circle New York, New
York, concerning the housing accommodations known as 155 West 68th
Street, New York New York, Apartment No. 32B, wherein the Rent
Administrator determined that the owner had overcharged the tenant.
The Administrative Appeal is being determined pursuant to the
provisions of Section 2526.1 of the Rent Stabilization Code.
The issue herein is whether the 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 originally commenced by the filing on September
11, 1984 of a Tenant Objection alleging a rent overcharge by the
tenant who stated in substance that the registered rent on April 1,
1984 was an overcharge and that the tenant had filed a rent
overcharge complaint prior to April 1 1984 which was still pending.
In answer to the complaint, the owner stated in substance that
there was no overcharge and submitted leases in effect from April
1, 1980.
In Order Number Z 042381, the Rent Administrator established the
lawful stabilization rent as $1,076.20 effective October 1, 1986,
determined that the tenant had been overcharged and directed a
refund to the tenant of $1,591.04 including treble damages on that
portion of the overcharge collected on and after April 1, 1984.
In this petition, the tenant alleges in substance that the order
was incorrectly addressed to the owner in care of the tenant's
attorney; the order incorrectly used a base date of April 1, 1980
BE 410089 RT
whereas the tenant had submitted leases from the base date of May
31, 1968 and that the tenant had filed an overcharge complaint
prior to April 1, 1984 under docket L 3111013 R which was still
pending and superseded the instant order issued April 30, 1987.
The tenant submitted a copy of his earlier overcharge complaint
dated March 22, 1984.
In answer to the tenant's petition, the owner stated in substance
that a copy of the order appealed herein was never served on it,
that the order number was not listed on the tenant's petition; that
the docket L 3111013 R referred to by the tenant involved a second
apartment also rented by the tenant - apartment 615 and not
apartment 32B and that an order, CDR 26,393 was issued on November
10, 1986 for apartment 615.
The Commissioner is of the opinion that this petition should be
granted in part.
An examination of the records in this case discloses that the
tenant had filed a complaint of rent overcharge on March 23, 1984
for apartment 32B under docket L 3111013 R but that the owner had
responded with leases and rental data for apartment 615 and that
the Rent Administrator had issued order CDR 26,393 on November 10,
1986 finding an overcharge for apartment 615 not the subject
apartment 32B.
When filing Tenant Objection No. docket 042381 on September 11,
1984, the tenant had referred to the previously filed complaint of
rent overcharge with the C.A.B. stating that it was still pending
and undocketed.
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 filed prior to April 1, 1984 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 hereafter are to the Code in
effect on April 30, 1987.
The tenant is, therefore, correct in his contention that the prior
docket was filed for apartment 32B in March 1984 and takes
precedence over docket 042381 filed on September 11, 1984 and
should be processed according to the RSC in effect on April 30,
1987.
With regard to the tenant's contention that the Rent Administrator
erred by not considering the rent in effect on May 31, 1968 as the
base date rent, the Commissioner notes that pursuant to Section
20(A)(1) of the Rent Stabilization Code, the base date of May 31,
1968 is applicable only to those apartments which were subject to
the Rent Stabilization Law on May 31, 1968 and never subject to
vacancy deregulation by virtue of a vacancy occurring between July
1, 1971 and June 30, 1974. In the instant case, the vacancy lease
executed September 1, 1971 by a prior tenant destabilized the
subject apartment which then became subject to the Emergency Tenant
Protection Act on July 1, 1974 at the rent charged on June 30, 1974
- the base date.
BE 410089 RT
Section 42A of the Rent Stabilization Code requires that an owner
retain complete records for each stabilized apartment in effect
from June 30, 1974 to date and produce them to the Division of
Housing and Community Renewal (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 submit a rental history from that
date.
In the instant case, the tenant had submitted copies of leases for
subject apartment 32B from July 1, 1966 including the base date
lease indicating a rent of $595.00 charged on June 30, 1974 with
the complaint filed on March 23, 1984.
In submissions to Tenant Objection docket 042381, the owner had
submitted letters sent to the tenant correcting the rent shown on
the lease commencing October 1, 1977 from $777.00 to $780.50 to
reflect corrections by Rent Guidelines Board Order No. 9 and
correcting the rent shown in the lease commencing October 1, 1980
from $897.58 to $913.19 to reflect corrections by Board Order No.
12. The aforementioned leases contained language allowing
amendments due to changes in the Rent Guideline Board Orders.
During the processing of the appeal, the prior and current owners
were re-served copies of the tenant's complaints filed on March 23,
1984 and September 11, 1984 along with the 1984 overcharge answer
forms and afforded an opportunity to supply rental data for
apartment 32B back to the base rent charged on June 30, 1974. In
addition, a copy of the order appealed herein issued on April 17,
1987 was served on the owners at their current address and the
owners were given an opportunity to file an answer or submit
additional information. The copies of leases from July 1, 1966
through September 30, 1986 which had been submitted by the tenant
with his complaint were included with the notice reserving the
tenant's complaint on the owners.
Copies of letters correcting the lease rents for apartment 32B
which had been submitted by the owner in the proceeding before the
Rent Administrator and not previously served on the tenant were
forwarded to the tenant's attorney.
To date, neither the owner nor tenant have forwarded any additional
evidence to the file.
Taking the above factors into account the Commissioner has
recalculated the lawful stabilization rents utilizing the base date
of June 30, 1974 and amount of rent overcharge for the subject
apartment, including treble damages, on the overcharge occurring on
and after April 1, 1984. The lawful stabilization rents and amount
of rent overcharge are set forth on the amended rent calculation
chart attached hereto and made a part hereof.
The owner is directed to reflect the findings and
determinations made in this order on all future
registration statements, including those for the current
year if not already filed, citing this Order as the basis
for the change. Registration statements already on file,
however, should not be amended to reflect the findings
BE 410089 RT
and determinations made in this order. The owner is
further directed to adjust subsequent rents to an amount
no greater than that determined by this order plus any
lawful increase.
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 in the same
manner as a judgment or not in excess of twenty percent per month
thereof may be offset against any rent thereafter due the owner.
THEREFORE, in accordance with the provisions of the Rent
Stabilization Law and Code, it is
ORDERED, that this petition for administrative review be, and the
same hereby is, granted in part, and, that the order of the Rent
Administrator be, and the same hereby is, modified in accordance
with this order and opinion. The lawful stabilization rents and
the amount of the rent overcharge are established on the attached
chart which is fully made a part of this order. The amount of the
rent overcharge through April 30, 1987 is $9,041.38.
ISSUED
JOSEPH A. D'AGOSTA
Acting Deputy Commissioner
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