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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. BG 110036 RO
: DRO DOCKET NO. TC-071445-G
PLAZA REALTY INVESTORS TENANT: LARISA BERSHTEYN
PETITIONER :
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ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW IN
PART
On July 3, 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, New York,
New York, concerning the housing accommodations known as 64-35
Yellowstone Blvd., Queens, New York, Apartment No. 4P, 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 June 1982, by the
filing of a rent overcharge complaint by the tenant who first
moved to the subject apartment on November 1, 1981 at a rental of
$510.00 per month. In answer to the complaint, the owner
submitted a complete rental history as required. It was
established that the tenant herein vacated the subject apartment
as of January 1, 1985 and that the subject apartment is now a
cooperative apartment.
In Order Number TC-071445-G, the Rent Administrator
determined that the tenant had been overcharged in the amount of
$1442.94 including interest on that portion of the overcharge
occurring on and after April 1, 1984, and excess security and
directed the owner to refund such overcharge to the tenant.
In this petition, the owner contends in substance that there
is no rent overcharge in that the Rent Administrator failed to
include a 4% electrical inclusion adjustment pursuant to Guideline
9 to which it was entitled and also failed to include the prior
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tenant's last renewal lease commencing July 1, 1981 in the
calculation of the lawful stabilization rent for the tenant
herein.
The Commissioner is of the opinion that this petition should
be granted in part.
An examination of the records in this case discloses that the
owner is correct in its contention that the Rent Administrator
failed to credit it with a 4% electrical inclusion adjustment
under Guideline 9 to which it was entitled since electricity was
included in the rent and the owner had not taken an electrical
inclusion adjustment under any prior guidelines. However, the
Rent Administrator correctly did not include the prior tenant's
last renewal lease commencing July 1, 1981 since an examination of
the rent ledgers submitted by the owner discloses that said prior
tenant vacated in August 1981, so that the renewal lease was in
effect less than three months. It is Division policy that a lease
rent in effect for three months or less cannot be used to support
a rent increase. (Accord: AK 410186-RO). Based on the foregoing,
the monthly lawful stabilization rents for the tenant herein are
as follows: $493.28 effective November 1, 1981 to October 31, 1982
and $537.68 effective November 1, 1982 to December 30, 1984 when
the tenant vacated. Since the owner in fact charged $510.00
effective November 1, 1981 to October 31, 1982 and $555.90
effective November 1, 1982 to December 30, 1984, the total
overcharge from November 1, 1981 through December 30, 1984
including interest on that portion of the overcharge occurring on
and after April 1, 1984 but not including excess security is
$679.37.
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.
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, granted in part, and, that the order of the
Rent Administrator be, and the same hereby is, modified in
accordance with this order and opinion. The amount of the rent
overcharge through December 30, 1984 is $679.37.
ISSUED
ELLIOT SANDER
Deputy Commissioner
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