Docket Number: BG 110067-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.: BG 110067-RO
MOHAMMAD MALIK, DRO DOCKET NO.: ZQ-004005-R
PETITIONER Tenant: Alicia Garcia
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ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
IN PART
On July 13, 1987 the above named petitioner-owner filed a Petition
for Administrative Review against an order issued on June 9, 1987
by the Rent Administrator, 92-31 Union Hall Street, Jamaica, New
York, concerning the housing accommodations known as Apartment 4B
at 47-40 41st Street, Queens, New York, wherein the Rent
Administrator determined that the owner had overcharged the
tenant.
The issue in this appeal is whether the Rent Administrator's order
was warranted.
The applicable section of the Law is Section 2526.1 of the 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 in
September 1985 of a rent overcharge complaint by the tenant who
stated that she first moved to the subject apartment on September
15, 1984.
The owner was served with a copy of the complaint and was
requested to submit rent records to prove the lawfulness of the
rent being charged. In response the owner submitted a rental
history from April 1, 1984 for the subject apartment and claimed a
5% vacancy allowance pursuant to Guideline 15. The owner was then
specifically advised that in order to ascertain if it was entitled
to receive a guideline 15 vacancy allowance it should submit a
rental history from July 1, 1975. No earlier rental history was
submitted by the owner.
In Order Number ZQ-004005-R, the Rent Administrator determined
that the tenant had been overcharged in the amount of $1,371.54
including excess security and interest. No credit was given for a
Guideline 15 vacancy increase in the calculation of the rent
overcharge.
In this petition, the owner contends in substance that there was
Docket Number: BG 110067-RO
no rent overcharge in that it was not credited with a Guideline 15
5% vacancy allowance, that it was not credited with a rent
increase for prior tenant's Halatshian's vacancy lease and that it
was not credited with a major capital improvement rent increase
pursuant to docket OM-4588.
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 his contention that he was not credited with a
major capital improvement rent increase due to a new roof and a
new oil burner-boiler pursuant to docket OM-4588 to which he was
entitled. However the owner was not entitled to a 5% vacancy
increase pursuant to Guideline 15 in that in order to obtain a
Guideline 15 vacancy increase of 5%, total vacancy allowance from
July 1, 1979 to June 30, 1983 must have been less than 15%. Since
the owner did not provide a rental history from July 1, 1979
although specifically requested to do so, the owner has not
established that he was entitled to a 5% vacancy allowance.
Further the owner was not entitled to have prior tenant's
Halatshian's August 15, 1984 vacancy lease considered in
determining the lawful stabilization rent of the tenant herein
since such vacancy lease was in effect for only one month and
occurred during the same guidelines period as the September 15,
1984 vacancy lease of the tenant herein. The compounding of
guideline increases during the same guidelines period is
prohibited.
Taking the aforementioned factors into account, the Commissioner
has recalculated the lawful stabilization rents and amount of the
rent overcharge for the subject apartment. The lawful
stabilization rents and amount of the rent overcharge are set
forth on the amended rent calculation chart attached hereto and
made a part hereof.
Because this determination concerns lawful rents only through the
date of September 14, 1986 used in the Administrator's order being
appealed, the owner is cautioned to adjust subsequent rents to an
amount no greater than that determined by this order plus any
lawful increases with this Order and Opinion being given as the
explanation for the adjustment.
If the owner has already complied with the Administrator's order
and there are arrears due to the owner as a result of the instant
determination, the tenant is permitted to pay off the arrears in
twelve equal monthly installments.
Docket Number: BG 110067-RO
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, not in excess of twenty percent per month of the overcharge
may be offset against any rent thereafter due the owner.
THEREFORE, in accordance with the Rent Stabilization Law and Code,
it is
ORDERED, that this petition be, and the same hereby is granted in
part and the Rent Administrator's order be, and the same hereby
is modified in accordance with this order and opinion. The lawful
stabilization rents and amount of rent overcharge are established
on the attached chart which is fully made a part of this order.
The amount of the rent overcharge through September 14, 1986 is
$876.92.
ISSUED:
ELLIOT SANDER
Deputy Commissioner
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