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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 110144 RO
: DRO DOCKET NO.TC-061009-G
CHRISTOS IFAMIDES TENANT: JOSE RODRIGUEZ
PETITIONER :
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ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
On July 27, 1987, the above-named petitioner-owner filed a
Petition for Administrative Review against an order issued on June
23, 1987, by the Rent Administrator, 10 Columbus Circle, New York,
New York, concerning the housing accommodations known as 4142
Elbertson Street, Queens, New York, Apartment No. 711, 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 (a) 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
February 1982, of a rent overcharge complaint by the tenant in
which the tenant stated that he first moved to the subject
apartment on October 1, 1980 at a rental of $400.00 per month.
The owner was served with a copy of the complaint and was
requested to submit rent records from the base date to prove the
lawfulness of the rent being charged. In answer to the complaint,
the owner submitted a rental history from March 1, 1980.
In Order Number CDR 30,697, 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
$5776.23 and directed the owner to refund such overcharge to the
tenant as well as to reduce the rent.
In this petition, the owner contends in substance that he did
not default as he submitted all the rent records he had in that he
could not obtain earlier rent records from the prior owner and
that by statute he should not be required to submit rent records
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prior to April 1, 1980. In support of his petition, the owner
resubmitted a copy of a lease commencing March 1, 1980 with prior
tenant Cherry Paul at a rental of $347.03 per month.
In answer to the owner's petition, the tenant stated in
substance that upon information and belief, the prior tenants of
the subject apartment were Freddy and Sandy Mitchell and that said
prior tenants were paying a rent of $270.00 per month as of
September 1980. The tenant submitted no evidence in support of
this contention.
The Commissioner is of the opinion that this petition should
be granted.
Section 42A of the former Rent Stabilization Code requires
that an owner retain complete records for each stabilized
apartment in effect from June 30, 1974 (or the date the apartment
became subject to rent stabilization, if later) and to produce
such records to the DHCR upon demand.
Section 26-516 of the Rent Stabilization Law, effective
April 1, 1984, limited an owner's obligation to provide rent
records by providing that an owner may not be required to
maintain or to produce rent records for more than four (4) years
prior to the most recent registration, and concomitantly,
established a four year limitation on the calculation of rent
overcharges.
It has been the DHCR's policy that overcharge complaints
filed prior to April 1, 1984, are to be processed pursuant to the
Law or Code in effect on March 31, 1984. (see Section 2526.1 (a)
(4) of the current Rent Stabilization Code.) The DHCR has
therefore applied Section 42A of the former Code to overcharge
complaints filed prior to April 1, 1984, requiring complete rent
records in these cases. In following this policy, the DHCR has
sought to be consistent with the legislative intent of the
Omnibus Housing Act (Chapter 403, Laws of 1983), as implemented
by the New York City Conciliation and Appeals Board (CAB) the
predecessor agency to the DHCR, to determine rent overcharge
complaints filed with the CAB prior to April 1, 1984, by applying
the law in effect at the time such complaints were filed so as
not to deprive such tenants of their rights to have the lawful
stabilized rent determined from the June 30, 1974 base date and
so as not to deprive tenants whose overcharge claims accrued more
than four years prior to April 1, 1984 of the right to recover
such overcharges. In such cases, if the owner failed to produce
the required rent records, the lawful stabilized rent would be
determined pursuant to the default procedure approved by the
Court of Appeals in 61 Jane Street Associates v. CAB, 65 N.Y.2d
898, 493 N.Y. S. 2d 455 (1985).
However, it has recently been held in the case of J.R.D.
Mgmt. v. Eimicke, 148 A.D.2d 610. 539 N.Y.S. 2d 667 (App. Div. 2d
Dept., 1989). motion for leave to reargue or for leave to appeal
to the Court of Appeals denied ( App. Div. 2d Dept., N.Y.L.J.,
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June 28, 1989. p.25, col.1), motion for leave to appeal to the
Court of Appeals denied (Court of Appeals, N.Y.L.J., Nov. 24,
1989, p.24, col.4)., motion for leave to reargue denied (Court of
Appeals, N.Y.L.J., Feb. 15, 1990, p.25, col.1), that the Law in
effect at the time of the determination of the administrative
complaint rather than the Law in effect at the time of the filing
of the complaint must be applied and that the DHCR could not
require an owner to produce more than four years of rent records.
Since the issuance of the decision in JRD, the Appellate
Division, First Department, in the case of Lavanant v. DHCR, 148
A.D.2d 185, 544 N.Y.S.2d 331 (App. Div. 1st Dept. 1989), has
issued a decision in direct conflict with the holding in JRD.
The Lavanant court expressly rejected the JRD ruling finding that
the DHCR may properly require an owner to submit complete rent
records, rather than records for just four years, and that such
requirement is both rational and supported by the Law and
legislative history of the Omnibus Housing Act.
Since in the instant case the subject dwelling unit is
located in the Second Department, the DHCR is constrained to
follow the JRD decision in determining the tenant's overcharge
complaint, limiting the requirement for rent records to April 1,
1980. An examination of the rent records from March 1, 1980
including prior tenant Cherry Paul's March 1, 1980 lease discloses
that no rent overcharge occurred. It is noted that the tenant has
submitted no evidence in support of his contention that the prior
tenant's last rent was $270.00. In the absence of such evidence,
the Commissioner deems it appropriate to accept the copy of the
written lease for the prior tenant submitted by the owner to
establish the prior tenant's last rent.
If the owner has already complied with the Rent
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 24 equal monthly installments. Should the
tenant vacate after the issuance of this order or have already
vacated, said arrears shall be payable immediately.
THEREFORE, in accordance with the Appellate Division ruling
in JRD, it is
ORDERED, that this petition for administrative review be, and
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the same hereby is, granted, and, that the order of the Rent
Administrator be, and the same hereby is, revoked, and it is
found that no rent overcharge occurred.
ISSUED
JOSEPH A. D'AGOSTA
Deputy Commissioner
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