BG 210218 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 210218 RO
: DRO DOCKET NO. T/A 9541,
HERBERT SILVER AND SALLY FRISHBEFG K-3101731-RT
TENANT: LAURA CASIANO
PETITIONER :
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ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
On July 10, 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 523 Fifth
Avenue, Brooklyn , New York, Apartment No. 1L, wherein the Rent
Administrator determined the fair market rent pursuant to the
special fair market rent guideline promulgated by the New York
City Rent Guidelines Board for use in calculating fair market rent
appeals.
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 2521.1 of the current 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 of a
fair market rent appeal by the tenant in March 1984. The tenant
took occupancy pursuant to a lease commencing October 1, 1974 at a
monthly rent of $225.00. In such proceeding, it was established
that the owner herein first took title to the subject premises on
October 9, 1979.
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In the order under appeal herein, the Rent Administrator
adjusted the initial legal regulated rent by establishing a fair
market rent of $166.37 effective October 1, 1974, found that the
tenant had paid excess rent including excess security totalling
$9596.34 through May 30, 1987 and directed the owner herein and
the prior owner to refund that portion of the excess rent each had
collected.
In this petition, the owner contends in substance that the
Rent Administrator should have specifically apportioned the excess
rent between itself and the prior owner.
In answer to the petition, the tenant stated in substance
that the Rent Administrator's order is clear enough in stating
that each owner is responsible for refunding that portion of the
excess rent each collected.
The Commissioner is of the opinion that this petition should
be granted.
It is the DHCR's policy in fair market rent appeal cases that
an owner will be held responsible only for its own portion of the
excess rent in the absence of evidence of any collusion between
the present owner and the former owner. To clarify matters for
the parties the Rent Administrator's order is modified as follows:
The prior owner (Joseph Mitchell) is directed to refund to the
tenant $2924.99 representing excess rent for the period from
October 1, 1974 to October 30, 1979. This order is issued without
prejudice to the tenant's rights, if any, to proceed against the
prior owner in a court of competent jurisdiction. The current
owners (Herbert Silver and Sally Frishberg) are directed to refund
to the tenant $6671.35 representing excess rent for the period
from November 1, 1979 to May 30, 1987 plus excess security.
The current owners are directed to roll back the rent to the
stabilized rent consistent with this decision and to refund or
fully credit against future rents over a period not exceeding six
months from the date of receipt of this order, the excess rent
collected by the current owners.
In the event the current owners do not take appropriate
action to comply within 60 days from the date of this order, the
tenant may credit the excess rent collected by the current owners
against the next month(s) rent until fully offset.
THEREFORE, in accordance with the provisions of the Rent
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Stabilization Law and Code, it is
ORDERED, that this petition for administrative review be, and
the same hereby is, granted, and, that the order of the Rent
Administrator be, and the same hereby is, modified to the extent
hereinabove indicated.
ISSUED
ELLIOT SANDER
Deputy Commissioner
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