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 410243 RO
: DRO DOCKET NO. L-3114630-R
ALEXANDER KARAS TENANT: BRENDA MILLER
PETITIONER :
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ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW IN
PART
On May 28, 1987, the above-named petitioner-owner filed a
Petition for Administrative Review against an order issued on
April 28, 1987, by the Rent Administrator, 10 Columbus Circle, New
York, New York, concerning the housing accommodations known as 226
East 7th Street, New York, New York, Apartment No. 4A, wherein the
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 Administrative Appeal is being determined pursuant to the
provisions of Section 42A of the former 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 in
March 1984 of a rent overcharge complaint by the tenant in which
the tenant stated in substance that she first moved to the subject
apartment on July 1, 1982 at a rental of $500.00 per month. The
tenant submitted affidavits from three occupants of the subject
premises to the effect that the prior tenant was at one time the
superintendent of the subject premises and paid a rental of about
$240.00 per month.
BE 410243 RO
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 response, the owner submitted a rental
history from January 15, 1978 including copies of leases and rent
ledgers and stated that the base date was January 15, 1978. In
support of such contention, the owner submitted a copy of a1977
rent ledger indicating the subject apartment was rent controlled
in 1977 and that the rent controlled tenants, Quinones/Colon
vacated in December 1977 at a rental of $112.08 per month.
In Order Number CDR 31130, the Rent Administrator determined
that the owner had failed to submit a complete rental history and
based thereon, found that the tenant had been overcharged in the
amount of $9506.68 including excess security and interest on that
part of the overcharge occurring on and after April 1, 1984 and
directed the owner to refund such overcharge to the tenant.
In this petition, the owner contends in substance that it did
submit a complete rental history and that the subject premises
contains only nine units so that the Rent Administrator's order
finding a rent overcharge is unduly harsh to a small building
owner.
In answer to the owner's petition, the tenant alleges in
substance that the owner has not established that he submitted the
rental history on a timely basis, that the owner's copies of
receipts for certified mailing are only proof that he mailed
something, perhaps an empty envelope or an answer without the
required rental history; that the copies of the rent ledgers
submitted do not appear to have been made in the regular course of
business but were probably prepared for this proceeding, that the
owner does not appear to have filed a decontrol report for the
subject apartment, that the copies of the leases submitted by the
owner are typewritten whereas the owner generally has had the
practice of preparing handwritten leases; and that the Pastoria
lease submitted by the owner was signed "Manny Pastoria" whereas
at the time of the alleged Pastoria occupancy, the occupant of the
subject apartment referred to himself as "Angel Pastoriza" or
"Angel Sepulvida".
The Commissioner is of the opinion that this petition should
be granted in part.
Section 42A of the former Rent Stabilization Code requires
that an owner retain complete records for each stabilized
apartment from June 30, 1974 to date and produce them to the 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.
An examination of the records in this case including
certified mailing receipts discloses that the owner did submit a
BE 410243 RO
complete rental history on a timely basis in the proceeding before
the Rent Administrator since the owner had submitted a rental
history from January 15, 1978, the date of occupancy of the first
rent stabilized tenant. Further contrary to the tenant's
contention, rent control records disclose that the owner did file
a Report of Statutory Decontrol for the subject apartment - docket
LS000858SD albeit filed on February 5, 1985 - after the tenant's
complaint herein was initiated. However there is no time limit as
to when an owner may file such a report. In addition maximum base
rent records for the subject apartment support the owner's 1977
rent ledgers in that the maximum base rent records show that the
subject apartment was rent controlled during 1974-75 and that the
rent controlled tenants were Quinones/Colon at a rental of $104.72
effective January 1, 1975.
With regard to the tenant's contention that the prior tenant
was a superintendent who paid a rent of $240.00 at most, such
contention is rebutted by the documentary evidence submitted by
the owner including leases and rent ledgers which indicate that
the prior tenant's last rent was $400.00 per month although some
of this may have been paid by such prior tenant in the form of
part time superintendent services in the nine unit building as
noted in the prior tenant's vacancy lease. The Commissioner has
examined the copies of the leases and rent ledgers submitted by
the owner and is of the opinion that such documents accurately
reflect the rental history of the subject apartment despite the
discrepancy in the names uses by the prior tenant-part time
superintendent.
The Commissioner has recalculated the lawful stabilization
rents and amount of the rent overcharge for the subject apartment
on the basis of the rental history submitted by the owner. The
lawful stabilization rents and amount of the rent overcharge are
set forth on the amended rent calculation chart attached hereto
and made a part hereof. The overcharge is due to the owner's
compounding of guideline increases during the same guidelines
period which is prohibited.
Because this determination concerns lawful rents only through
the date of June 30, 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 with said order being given as the explanation
for the adjustment.
If the owner has already complied with the Administrator's
order and there are arrears due to the owner as a result of the
instant determination, the tenant is permitted to pay off the
arrears in twenty four equal monthly installments.
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 as a judgment
or not in excess of twenty percent per month thereof may be offset
BE 410243 RO
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 amount of rent overcharge are established on the
attached chart which is fully made a part of this order. The
amount of the rent overcharge through June 30, 1985 is $2726.76.
ISSUED
ELLIOT SANDER
Deputy Commissioner
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ADMINISTRATIVE REVIEW BUREAU
COVERING MEMORANDUM
ARB Docket No.: BE 410243 RO
DRO Docket No/Order No.: L-3114630-R
Tenant(s): Brenda Miller
Owner: Alexander Karas
Code Section: 42 A of former RSC
Premises: 226 East 7th Street, New York, NY, Apt. 4A
Order and Opinion Granting Petition in Part
Petition granted in part on basis owner did submit a complete
rental history. However, examination of such rental history
discloses that there is still a rent overcharge.
APPROVED:
Processing Attorney:
Supervising Attorney:
Bureau Chief:
Deputy Commissioner:
Mailed copies of Order and Determination to:
Tenant(s)
Owner
Tenant's Atty
Owner's Atty
Date: : by
signature
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