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 510352 RO
: DRO DOCKET NO. U-3124407-RT
RIVERVIEW COMPANY TENANT: EUFEMIA & CHARLES
SOSA
PETITIONER :
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ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW IN
PART
On May 18, 1987, the above-named petitioner-owner filed a
Petition for Administrative Review against an order issued on
April 14, 1987, by the Rent Administrator, 10 Columbus Circle, New
York, New York, concerning the housing accommodations known as 880
West 181st Street, New York, New York, Apartment No. 2A, 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 in March 1984, by
the filing of a rent overcharge complaint and a fair market rent
appeal by the tenants. The tenants indicated that they resided in
the subject apartment from May 1, 1979 to February 28, 1981 and
have been residing in apartment 1H in the subject premises since
March 1, 1981.
In answer to the complaints, the owner submitted a rental
history for the subject apartment.
In Order Number CDR 29,856, the Rent Administrator dismissed
the tenants' fair market rent appeal but determined that the
tenants had been overcharged in the amount of $1244.61 from May 1,
1979 to February 28, 1981 including excess security and directed
the owner to refund such overcharge to the tenant.
In this petition, the owner contends in substance that the
tenants were not the tenants of record on the date they filed
BE 510352 RO
their complaints, that the tenants' fair market rent appeal was
improper, that rent refunds for periods prior to April 1, 1980 are
barred by statute, that the Rent Administrator listed incorrect
lawful stabilization rents, that the current tenant's rent
overcharge and fair market rent appeal determination has been
appealed, and that the tenants' security deposit was returned when
the tenants vacated the subject apartment so that including excess
security in the amount of the overcharge was error.
The Commissioner is of the opinion that this petition should
be granted in part.
The tenants were not precluded from filing a rent overcharge
complaint by the fact that they were no longer living in the
subject apartment at the time they filed their complaints but had
relocated to another apartment in the subject premises. With
regard to the owner's contention that the tenants were not
entitled to file a fair market rent appeal, it is note that the
Rent Administrator, in fact, dismissed the fair market rent
appeal, but correctly determined the rent overcharge complaint.
An examination of the rent records discloses that the lawful
stabilization rents for the subject apartment were correctly
calculated and are in accordance with the appeal order cited by
the owner in its petition - AL 510129 RO - issued on March 21,
1988 involving the current tenant's rent overcharge complaint and
fair market rent appeal. Further since the tenants filed their
rent overcharge complaint prior to April 1, 1984, they are not
barred by statute from receiving rent refunds for periods prior to
April 1, 1980 - See Lavanant v. DHCR, 148 A.D. 2d 185, 544 N.Y.S.
2d 331 (App. Div. 1st Dept. 1989). Finally, the owner is correct
in its contention that it should not have to pay excess security
since the tenants' security deposit was returned when the tenants
moved to another apartment in the subject premises. Accordingly,
the overcharge must be reduced to $1183.14 ($1244.61 - excess
security of $61.47).
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 of the overcharge may
be offset against any rent thereafter due the owner with regard to
the tenants' current apartment - 1H.
THEREFORE, in accordance with the provisions of the Rent
Stabilization Law and Code, it is
BE 510352 RO
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 to show a
total rent overcharge of $1183.14. In all other respects, the
Rent Administrator's order is affirmed.
ISSUED
ELLIOT SANDER
Deputy Commissioner
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ADMINISTRATIVE REVIEW BUREAU
COVERING MEMORANDUM
ARB Docket No.: BE 510352 RO
DRO Docket No/Order No.: U-3124407-RT
Tenant(s): Eufemia & Charles Sosa
Owner: Riverview Company
Code Section: 2526.1 of RSC
Premises: 880 West 181st Street, New York, New York, Apt. 2A
Order and Opinion Granting Petition in Part
Petition granted in part to deduct amount of excess security
from overcharge since security deposit was returned when tenants
moved from apartment. However tenants were entitled to file rent
overcharge complaint even though they had already moved from
apartment.
APPROVED:
Processing Attorney:
Supervising Attorney:
Director:
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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