BF 410318-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. BF 410318-RO

                                          :  DISTRICT RENT OFFICE
                                             DOCKET NO. L 3117211-R
           Milford Management Corp.,        
                                             TENANT: Esther Trauring          
                 
                            PETITIONER    : 
      ------------------------------------X                             

          ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
                   IN PART AND MODIFYING ADMINISTRATOR'S ORDER


      On June 18, 1987, the above-named petitioner-owner filed a Petition for 
      Administrative Review against an order issued on May 14, 1987, by a Rent 
      Administrator concerning the housing accommodations known as 155 West 
      68th Street, New York, New York, Apartment No. 1928, 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 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 issue herein is whether the Rent Administrator's order was 
      warranted.

      The applicable sections of the Law are Section 26-516 of the Rent 
      Stabilization Law and Section 2526.1(a) of the current Rent 
      Stabilization Code.

      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 March 22, 1984 
      of a rent overcharge complaint by the tenant, in which she stated that 
      she had commenced occupancy in April, 1980 at a rent of $392.09 per 
      month.  The tenant vacated the apartment on March 31, 1983.

      The owner was served with a copy of the complaint and directed to submit 
      a complete rent history from the base date. 

      In a submission received December 10, 1986, the owner submitted the 
      complete lease history, commencing with a lease for the period from 







          BF 410318-RO

      March 1, 1974 to February 28, 1977.  Due to an administrative error, the 
      owner was directed to submit the lease history again.  The owner's 
      submission dated May 6, 1987 contained leases dating from only March 1, 
      1977.  Included with the lease history was a single handwritten sheet, 
      signed by the complainant, listing various items of equipment installed 
      in the apartment prior to her occupancy.

      In the order here under review, the Rent Administrator determined that, 
      due to the owner's failure to submit a complete rental history, the 
      tenant had been overcharged in the amount of $2,724.54, including excess 
      security, and directed the owner to refund such overcharge to the tenant 
      as well as to reduce the rent.

      In its petition the owner asserts that the tenant did not have standing 
      to file this complaint because she filed the complaint after she vacated 
      the subject apartment.  The owner also disputes the Administrator's 
      calculaton of the lawful rent and protests the Administrator's failure 
      to grant a rent increase for new equipment that was installed in March, 
      1980.  The owner also includes a calculation of the lawful stabilized 
      rent from the base date which results in a reduction of overcharges.  

      The tenant's answer disputes the owner's contention that she had no 
      standing to file the complaint.

      The Commissioner is of the considered opinion that this petition should 
      be granted in part and that the Administrator's order be modified.

      The owner's contention that the tenant had no standing to file the 
      overcharge complaint because she had already vacated the subject 
      apartment is without merit since no such restriction is stated in the 
      Rent Stabilization Law and Code.

      A review of the record in this case indicates that the owner did submit 
      to the Administrator the complete lease history dating from the base 
      date of June 30, 1974.  Apparently, the owner omitted the earliest lease 
      when submitting the lease history for the second time, even though it 
      had been included in the earlier submission.  It was therefore improper 
      for the Administrator to determine the rent by the default procedure.

      Petitioner's claim for a monthly increase of $22.63 for new equipment in 
      the complainant's vacancy lease, effective March 15, 1980, is denied, 
      due to insufficient documentation of the cost of the equipment, in 
      accordance with Policy Statement 90-10.  Specifically, a handwritten 
      list of the new items and their cost, without some independent 
      documentation of the cost such as cancelled checks or an invoice, is not 
      acceptable to prove the claim.

      Petitioner is correct, however, that a vacancy allowance should have 
      been included by the Administrator in calculating the complainant's 
      initial lease.  

      A recalculation of the lawful stabilized rent results in a decrease of 
      overcharges to $916.75, from $2,724.54, and an increase in the lawful 
      rent as of March 31, 1983 to $421.49, from $369.41, as documented in a 
      rent calculation chart affixed hereto and made a part hereof.

      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 


          BF 410318-RO

      and Rules, be filed and enforced in the same manner as a judgment.  A 
      copy of this opinion is also being sent to the current occupant of the 
      subject premises.

      THEREFORE, pursuant to the Rent Stabilization Law and Code, it is

      ORDERED, that this Petition be, and the same hereby is, granted in part, 
      and that the Administrator's order be, and the same hereby is, amended 
      in accordance with this order and opinion.


      ISSUED:



                                                                    
                                      JOSEPH A. D'AGOSTA
                                      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