BF-410246-RO; CC 410366-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. BF 410246-RO
CC 410366-RT
: DISTRICT RENT OFFICE
Jean Angelini, tenant, DOCKET NO. 61421-G,
and L-001796-R
Steinberg & Dubin Memorial,
Inc., owner,
PETITIONERS :
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ORDER AND OPINION GRANTING TENANT'S AND DENYING OWNER'S PETITIONS
FOR ADMINISTRATIVE REVIEW
The above owner's and tenant's administrative appeals are in
objection to separate administrative orders involving the same
owner and tenant. These appeals are herein combined in the
instant order and opinion.
On June 10, 1987 the above-named petitioner-owner filed a
Petition for Administrative Review against an order issued under
Docket Number 61421 G on May 6, 1987, by a Rent Administrator
concerning the housing accommodations known as 190 Norfolk
Street, New York, New York, Apartment No. 1A wherein the Rent
Administrator determined that the owner had overcharged the
tenant.
On March 11, 1988 the above-named petitioner-tenant filed a
Petition for Administrative against an order issued under Docket
number L 001796 R on February 9, 1988 by a Rent Administrator
concerning the same housing accommodations wherein the Rent
Administrator determined that the tenant had not been
overcharged.
The Commissioner notes that this proceeding under Docket Number
61421 G 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 provisions 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 orders were
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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 appeals.
This proceeding was originally commenced by the filing on
February 22, 1982 of a rent overcharge complaint by the tenant
(Docket Number 61421 G).
The tenant had assumed occupancy on June 1, 1980 pursuant to a
three year lease at a rent of $350.00 per month. The tenant
stated that although the owner told her the apartment was not
rent stabilized, her rent was recently increased $8.00 per month
as a fuel pass along, which was only for rent stabilized tenants.
She also discovered that the previous tenant paid a much lower
rent.
In its answer, the owner submitted an affidavit from the prior
tenant which stated that the prior tenant moved into the
apartment on August 1, 1977 and had been given the DC-2 notice.
The prior tenant's affidavit also stated that he had been
superintendent of the building, but paid rent of $215.00 per
month and never had a lease. The owner stated that since the
subject apartment was a superintendent's apartment, it was rented
to the complainant at fair market value.
On May 6, 1987 the Rent Adinistrator issued an order under Docket
Number 61421 G (Order Number CDR 30,192) wherein it was
determined that the tenant had been overcharged $8,473.77,
including excess security and interest on all overcharges on or
after April 1, 1984. The order stated that the subject apartment
was not elegible for exemption from the Rent Stabilization Code
under Section 2(g) because, as provided in subdivision (4) of
that Section, the exemption does n t apply unless the tenant-
employee pays no rent, which was not the case with the subject
apartment; that the initial stabilized rent for the previous
tenant was $215.00; and that the lawful vacancy rent for the
tenant was $258.00, for an initial overcharge of $92.00 per
month (Guidelines 11 increase over July 1, 1979 rent of $215.00
of 15% for 3 year vacancy lease + 5% vacancy allowance = $258.00;
$350.00 - $258.00 = $92.00).
Subsequent to the filing of the initial overcharge complaint, the
tenant filed a second overcharge complaint on May 1, 1985 wherein
she stated that she had been sent a copy of the 1984 initial
registration (Docket Number L 001796 R).
On February 9, 1988, a Rent Administrator issued an order under
Docket Number L-001796-R, which determined that there were no
overcharges because the initial April 1, 1984 registered rent of
$385.00 per month had not been challenged by the tenant in a
timely manner and, as a result, became the lawful rent.
In its petition of the order issued under Docket Number 61421 G,
the owner contends, inter alia, that the apartment does in fact
qualify for exemption under Section 2(g)(4) because the
superintendent who lived in the apartment did not have a lease
and therefore cannot be said to have paid "rent." Instead, the
BF-410246-RO; CC 410366-RT
superintendent gave "consideration" for his lodging in the
apartment, which was incident to his employment, and not "rent"
as defined by the Rent Stabilization Code. The petition further
contends that, on information and belief, the tenant had filed
another overcharge complaint which was dismissed because the
subject apartment was ruled to be exempt.
In her answer to the owner's petition, the tenant submits letters
from two other tenants who dispute the owner's claim that the
apartment was formerly occupied by the superintendent. The
tenant also notes that as long as the owner collected rent in any
amount, the exemption under Section 2(g)(4) does not apply.
In her petition of the order issued under Docket Number L001796R,
the tenant contends that her objection to the April 1, 1984 rent
was unnecessary because her original complaint predates the
registration, and dates back to her objection to her original
June 1, 1980 rent of $350.00. The tenant contends, therefore,
that she is entitled to all relief from overcharges dating from
the original complaint.
In its answer to the tenant's petition, the owner contends, inter
alis, that the Administrator properly dismissed the tenant's
complaint because it was not filed within 90 days of her receipt
of the initial registration, and was therefore invalid.
The Commissioner is of the considered opinion that the owner's
petition should be denied, the tenant's petition should be
granted and the Administrator's order issued under Docket #
L-001796-R, should be revoked.
Section 2(g)(4) of the former Rent Stabilization Code provides
for an exemption from the RSC for, iter alia:
(4) dwelling units occupied by domestic servants,
superintendents, caretakers, managers or other
employees to whom the space is provided as part or all
of their compensation without payment of rent and who
are employed for the purpose of rendering services in
connection with the premises of which the dwelling
units is a part, but exempt solely during the
continuation of such occupancy;
The record in this case establishes that the tenant prior to the
complainant was superintendent of the subject building, but paid
rent of $215.00 per month. Since the above provision of the
Rent Stabilization Code only exempts apartments from its
jurisdiction if the tenant-employee pays no rent, it was properly
determined by the Rent Administrator in Docket # 61421-G that the
subject-apartment was not exempt from the RSC. Accordingly, the
lawful rent and amount of overcharges as determined by the
Administrator in the order issued under Docket #61421-G are
affirmed.
The tenant's petition correctly contends that the fact that the
tenant did not file a timely objection to the initial registered
rent of April 1, 1984 does not deprive her of the full measure of
relief provided in the Rent Stabilization Code, since the tenant
had preserved her right when she filed the first overcharge
BF-410246-RO; CC 410366-RT
complaint.
The second, unnecessary complaint, which was filed by the tenant
before the DHCR issued an order relating to the first complaint,
has no effect on the validity of the first Administrative order,
affirmed above. The Commissioner hereby revokes the second
Administrator's order issued under Docket No. L-001796-R.
Because this determination concerns lawful rents only through
May 6, 1987 the owner is cautioned to adjust subsequent rents to
an amount no greater than that determined by the Rent
Administrator's order plus any lawful increases, and to register
any adjusted rents with this order and opinion being given as the
explanation for the adjustment.
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 Rent Stabilization Law and
Code, it is
ORDERED, that the owner's petition be, and the same hereby is,
denied; that the tenant's petition be and the same hereby is,
granted; that the Administrator's order under Docket No. 61421-G
be, and the same hereby is, affirmed; and that the
Administrator's order under Docket No. L-001796-R, be and the
same hereby is, revoked.
ISSUED:
JOSEPH A. D'AGOSTA
Acting Deputy Commissioner
BF-410246-RO; CC 410366-RT
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