ADM. REVIEW DOCKET NO.: BE 410407 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
------------------------------------X
IN THE MATTER OF THE ADMINISTRATIVE : ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.: BE 410407 RO
: DRO DOCKET NO.:
L 3113653 R/T
MONDIAL REALTY CORP.
TENANTS: George King
PETITIONER : Margaret
(Dickenson)
------------------------------------X King
ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
IN PART, AND MODIFYING DISTRICT RENT ADMINISTRATOR'S ORDER
On May 4, 1987, the above-named petitioner-owner filed a
Petition for Administrative Review against an order issued on
April 1, 1987, by the Rent Administrator, 10 Columbus Circle, New
York, N.Y., concerning housing accommodations known as Apartment
No. 1A at 109 E. 73rd Street, New York, N.Y., wherein the Rent
Administrator determined that the tenant had been overcharged.
The issue in this appeal is whether the Administrator's order
was warranted.
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, any reference in this order and opinion to
Sections of the Rent Stabilization Code is to the Code in effect
on April 30, 1987, and this proceeding is being determined in
accordance therewith.
The Commissioner has reviewed all of the evidence in the
record and has carefully considered that portion of the record
relevant to the issues raised by the administrative appeal.
This proceeding was originally commenced by the filing of a
rent overcharge complaint by the tenant with the New York City
Conciliation and Appeals Board, one of the predecessor agencies to
the DHCR. The tenant took occupancy pursuant to a lease
commencing November 1, 1981 and expiring October 31, 1982 at a
monthly rent of $755.29.
The owner was served with a copy of the complaint and was
requested to submit rent records to prove the lawfulness of the
ADM. REVIEW DOCKET NO.: BE 410407 RO
rent being charged. In answer to the complaint, the owner
submitted a complete set of leases from the base date (June 30,
1974) and the rental history for the subject apartment.
In Order Number CDR 29,667, the District Rent Administrator
established the lawful stabilized rent, determined that the tenant
had been overcharged and directed the owner to refund overcharges
of $14,921.75, plus interest on overcharges collected after April
1, 1984, to the tenant.
The Petitioner contends that, pursuant to Section 2521.2 of
the Rent Stabilization Code, the Administrator was required to
allow the owner prior increases not previously charged, in
determining the amount of overcharge.
In the alternative, the petitioner maintains that the Rent
Administrator erred in his calculation of the overcharges in that
the Administrator failed to properly calculate the lawful
stabilized rent from the June 30, 1974 base date.
In answer to the owner's petition, the tenant asserted that
the owner's statements at PAR were intended solely to delay
repayment to her of the overcharges.
The Commissioner is of the opinion that this petition should
be granted in part.
The Commissioner finds that the Rent Stabilization Law and
Code provide rules for the maximum legal stabilized rent that may
be charged. However, nothing prohibits an owner from charging
less than that amount. It has been a consistent administrative
rule, affirmed by the courts, that once a rent lower than the
lawful stabilized rent is charged pursuant to a lease, especially
in the absence of a "sweetheart lease" and/or a dual registration,
that the portion of the increase waived cannot thereafter be
recouped by charging more than the then allowable increase. The
Commissioner notes that Section 2521.2 of the Rent Stabilization
Code, cited by the petitioner, applies to complaints filed after
April 1, 1984, and thus is not applicable to the instant
proceeding.
The Commissioner finds that the Administrator failed to
properly calculate the lawful stabilized rent from the base date
of June 30, 1974. Accordingly, the lawful stabilized rent is
recalculated on the attached rental history chart, which hereby is
made a part of this order. The total overcharge, inclusive of
interest on overcharges collected on or after April 1, 1984, and
excessive security, is $10,412.05. The owner is directed to
refund this amount to the tenant.
This order of the state Division of Housing and Community
Renewal awarding penalties may, upon the expiration of the period
in which the owner may institute a proceeding pursuant to Article
Seventy-Eight of the Civil Practice Law and Rules, be filed and
enforced by a tenant in the same manner as a judgment or not in
ADM. REVIEW DOCKET NO.: BE 410407 RO
excess of twenty percent thereof per month may be offset against
any rent thereafter due the owner.
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 the District Rent Administrator's order be and the
same hereby is modified pursuant to this order.
ISSUED:
ELLIOT SANDER
Deputy Commissioner
|
