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



           ------------------------------------X 
           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    
           ------------------------------------X                             


             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



    

TenantNet Home | TenantNet Forum | New York Tenant Information
DHCR Information | DHCR Decisions | Housing Court Decisions | New York Rent Laws
Disclaimer | Privacy Policy | Contact Us

Subscribe to our Mailing List!
Your Email      Full Name