BF 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
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IN THE MATTER OF THE ADMINISTRATIVE ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.: BF 410407 RO
DRO DOCKET NO.: L 3114546 RT
KOPPEL'S REALTY CORPORATION, CDR 30,520
TENANT: ROBERT MONTAGNESE
PETITIONER
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On June 29, 1987 the above-named petitioner-owner filed a Petition
for Administrative Review against an order issued on June 5, 1987,
by the Rent Administrator, 10 Columbus Circle, concerning the
housing accommodations known as 595 West End Avenue, New York, New
York, Apartment No. 16D 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 Administrative Appeal is being determined pursuant to the
provisions of Section 42A 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 by the filing in March,
1984 of a rent overcharge complaint by the tenant.
In response to the tenant's complaint, and Fair Market Rent Appeal
(hereafter FMRA) the owner stated in substance that rental records
were lost in transit but that May 1, 1979 appears to be the date of
occupancy of the First Rent Stabilized tenant after vacancy
decontrol and submitted a rental history from May 1, 1979.
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The tenant disputed the owner's rental history and claimed that the
Apartment was decontrolled circa 1974. The tenant provided the
names and approximate dates of occupancy of prior rent stabilized
tenants.
In Order Number CDR 30,520, the Rent Administrator determined that
due to the owner's failure to submit a complete rental history, the
owner had collected a rent overcharge of $ 16,182.94 including
interest on that portion of the overcharge occurring on and after
April 1, 1984.
In this petition, the owner contends in substance that the Rent
Administrator improperly defaulted the owner and ignored the prior
leases submitted from May 1, 1979 which the owner had maintained
was the base date; that the Rent Administrator failed to consider
the owner's explanation of the loss of rental records and the
owner's assertion that a complete rental history had been
submitted.
In answer to the owner's petition, the tenant stated in substance
that the Rent Administrator's Order was warranted because the owner
had failed to submit complete rental records for the subject
apartment and the tenant is aware of rent stabilized tenants who
occupied the subject apartment prior to May 1, 1979.
The Commissioner is of the opinion that this petition should be
denied.
Section 42A of the Rent Stabilization Code requires that an owner
retain complete records for each stabilized apartment in effect
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 and
submit a rental history from that date.
A review of evidence in the Agency's files discloses that the
subject apartment was decontrolled prior to the date stated by the
owner (May 1, 1979). The "Registration update work sheet (MBR
issued)" prepared in June 1974 by the owner listed the subject
apartment as decontrolled. Furthermore, the owner did not list the
subject apartment as rent controlled on either the 1974-75 or 76-77
master building rent schedules filed with the Office of Rent
Control.
In the instant case, therefore the owner has not provided a
complete rental history from the date of decontrol as mandated by
Section 42A.
In addition, although the owner failed to submit evidence that a
copy of the DC-2 notice of Initial Legal Regulated Rent was served
on either the 1st rent stabilized or subsequent stabilized tenant
as requested by the Rent Administrator, the rent Administrator was
precluded from processing the tenant's FMRA by the owner's failure
to submit the initial rent charged the 1st rent stabilized tenant.
Accordingly, the Rent Administrator's order establishing the lawful
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stabilization rent utilizing the Section 42A default procedure and
finding a rent overcharge was warranted.
Because this determination concerns lawful rents only through March
14, 1986, 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 provisions of the Rent
Stabilization Law and Code, it is
ORDERED, that this petition for administrative review be, and the
same hereby is, denied, and, that the order of the Rent
Administrator be, and the same hereby is, affirmed.
ISSUED
JOSEPH A. D'AGOSTA
Acting Deputy Commissioner
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