BG 110255 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 110255 RO
: DISTRICT RENT OFFICE
DOCKET NO. ZQ 001228 R
Parman Corp.,
TENANT: Elham Sarvdadi
PETITIONER :
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ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
On July 23, 1987, the above-named petitioner-owner filed a Petition for
Administrative Review against an order issued on July 6, 1987, by the
Rent Administrator, 92-31 Union Hall Street, Jamaica,
New York, concerning the housing accommodations known as 104-40 Queens
Boulevard, Queens, New York, Apartment No. 12Y, wherein the District
Rent Administrator determined that the tenant had been overcharged.
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 March 1985 by the filing of
a rent overcharge complaint by the tenant who stated he took occupancy
pursuant to a one year lease commencing December 1, 1984 and expiring
November 30, 1985 at a monthly rent of $690.25 which included two new
air conditioners and electricity charges for same. Electricity is
included in the rent of the subject apartment. The tenants asserted
that based on the prior rent of $527.65, the vacancy rent for the
subject apartment should be $650.23 including air conditioning and
improvements.
The owner stated that it calculated the rent of $690.25 pursuant to
Guidelines 16 under which it concluded that it was entitled to a 13.5%
increase over the prior rent of $527.65 (7.5% vacancy allowance and 6%
guideline increase) plus $51.35 for new equipment installed at a total
cost of $2054.00 (1/40 of $2054.00 = $51.35) and $40.02 for electricity
for 2 additional air conditioners.
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On April 20, 1987 the owner was directed by the DHCR to submit copies of
bills and cancelled checks to document the claimed improvements. In
response the owner submitted the required documentary evidence for all
the items except for the air conditioners.
In Order Number ZQ 001228 R, the District Rent Administrator determined
the initial stabilized rent of the complaining tenant to be $650.23
based on a $13.5% increase (6% guideline and 7.5% vacancy allowance)
over the prior rental of $527.65 plus an increase of $51.35 for new
equipment installed prior to occupancy. It further determined that a
rent overcharge of $1459.35 had occurred through July 31, 1987 including
interest on that portion of the overcharge occurring on and after April
1, 1984 and directed the owner to refund such overcharge to the tenant.
During the pendency of the instant proceeding, the tenant vacated but
forwarded his current address.
In this petition, the owner contends in substance that the Rent
Administrator omitted the increase for electrical use for the two
additional air conditioners which were installed in December 1984.
Further, the Rent Administrator's increase for new equipment of $51.35
did not include 1/40th of the cost of the 2 new air conditioning units.
The owner submitted a pro-rated bill for $755.58 indicating the cost of
the 2 units and claiming an additional 1/40 increase of $18.89. The
bill was not submitted to the Rent Administrator because the owner
stated it was requesting less than the full amount to which it was
entitled for the installation.
In answer to the owner's petition, the tenants responded that they did
not know the owner was charging electrical fees for the 2 additional
units and had they had the option would not have accepted the 2
additional units.
The Commissioner is of the opinion that this petition should be granted
in part.
The owner is correct in its contention that electric charges for air
conditioners installed prior to October 1, 1985 (where electricity is
included in the rent) are included in the base rent and not listed as
separate charges which change annually as is true for such air
conditioners first installed on or after October 1, 1985. An
examination of the records in this case discloses that the Rent
Administrator erred in not including the electrical fee of $19.43 for
each of the two air conditioners installed immediately prior to
occupancy by the tenants herein (1985 air-conditioning season annual fee
of $233.07). The inclusion of the 2 air conditioner fees results in a
vacancy rent of $689.09 not $690.25 as the owner contends.
The Commissioner rejects the owner's submission of the additional bill
BG 110255 RO
for the actual cost of the installation of the two new air conditioners
to be used as the basis of an additional increase pursuant to Section
2522.4(a)(1) since an examination of the records in this case discloses
that in the proceeding before the Rent Administrator, the owner did not
submit the bill or claim the increase for the two air conditioners cost
although afforded an opportunity to do so and has not submitted a
reasonable excuse for its failure to do so. Since this is not a de novo
proceeding the owner's submission cannot be considered for the first
time on appeal.
With regards to the tenant's contention that the acceptance of the 2
additional air conditioners was a condition of rental, it is noted that
Section 2522.4(a)(1) of the Rent Stabilization Code, does not require
the owner to secure a tenant's consent for installation of new equipment
during a period of vacancy. Further, the tenant did not raise the issue
of conditional rental in the proceeding before the Rent Administrator so
that this matter cannot properly be considered for the first time on
administrative appeal.
Taking the aforementioned factors into account, the Commissioner has re-
calculated the lawful stabilization rent and amount of rent overcharge
for the subject apartment. The lawful stabilization rent and amount of
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 July
31, 1987, the owner is cautioned to adjust subsequent rents to an amount
no greater than that determined by this order plus any lawful increases,
and to register any adjusted rents with this order and opinion being
given as the explanation for the adjustments.
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.
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 lawful stabilization rents and the amount
of the rent overcharge are established on the attached chart which is
fully made a part of this order. The amount of the rent overcharge
BG 110255 RO
through July 31, 1987 is $43.45.
ISSUED:
JOSEPH A. D'AGOSTA
Acting Deputy Commissioner
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