DOCKET NUMBER: BG-210370-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 NUMBER: BG-210370-RO
:
ALL ISLAND REALTY, : DISTRICT RENT OFFICE
: DOCKET NUMBER: CDR20,541,
: AS AMENDED
PETITIONER : TENANT: MARGARET NIEWIEROWSKI
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On July 29, 1987, the above-named petitioner-owner filed a
Petition for Administrative Review against an order issued on
July 1, 1987, by the Rent Administrator, 10 Columbus Circle, New
York, New York concerning the housing accommodations known as
Apartment 4-B, 199 East Second Street, Brooklyn, New York,
wherein the Rent Administrator determined that there had been an
overcharge and ordered a refund of $12,787.88, including treble
damages and excess security.
The Commissioner has reviewed all of the evidence in the record
and has carefully considered that portion of the record
concerning the issues raised by the administrative appeal.
The tenant commenced this proceeding on February 14, 1984 by
filing an overcharge complaint with the New York City
Conciliation and Appeals Board (CAB), the agency formerly charged
with enforcing the Rent Stabilization Law.
On March 2, 1989 the CAB notified the owner of the complaint and
advised the owner to preserve its rent records and that, in the
absence thereof, the rent would be established pursuant to
Section 42A of the former Rent Stabilization Code.
On October 24, 1984, the DHCR served the owner with a copy of the
complaint together with an answer form [RS-1(7-84)] which
requested leases or other rent records to document the rental
history of the subject apartment. The owner was again advised
that failure to produce a completely documented rental history
would result in the establishment of the lawful rent by the
Division. In addition, the owner was further advised that treble
damages could be imposed.
In answer to the complaint, the owner through its managing agent,
DOCKET NUMBER: BG-210370-RO
M. Lob, submitted a completed answer form indicating that the
base date for the subject apartment was June 30, 1974 and listing
prior rents from April 1, 1974 until the complaining tenant's
initial rent of $335.00, commencing August 15, 1983. However, no
documentation whatsoever was submitted with the owner's answer.
On May 7, 1986 a Final Notice of Pending Default [RNR6 (Rev.
4/86)] advised the owner that it had failed to submit the
required documentation and described the default procedure for
establishing the stabilized rent. The owner was again notified
of the possibility of treble damages unless the owner proved the
overcharges, if any, were not willful.
On May 20, 1986, the owner responded by saying the tenant had
moved to an unknown address in California. No rental
documentation was submitted.
In Order Number CDR20,541, issued August 5, 1986, the
Administrator found the owner in default for having "failed to
provide a full rental history for the subject apartment although
requested to do so." That order listed an incorrect address for
the owner. On July 1, 1987, the amended order herein under
review was issued, the only amendment being to correct the
owner's address.
In this petition, the owner, through one Martin Rich, contends
that the Rent Administrator's Order is incorrect and should be
modified because the owner's address is not that listed in the
first order to which the complaint and all other correspondence
was apparently mailed. Accordingly, the owner alleges it was
never given the opportunity to respond. In addition, the owner
alleges that the tenant failed to file her overcharge complaint
within 90 days of receiving the apartment registration forms on
July 7, 1984. Consequently, the complaint should be dismissed.
Finally, the petitioner encloses a purported Report of Statutory
Decontrol (R-42) stating the apartment was decontrolled in 1982
and alleging that the prior tenant had received a fair market
rent of $315.00 on the first stabilized rent. A copy of a lease
for the period March 15, 1982 through March 30, 1983 for a tenant
named Mehmet Ali is submitted with the owner's petition.
In answer to this petition, the tenant contends that she never
received a copy of the petition. The tenant's return address is
approximately one and a half blocks from the subject address.
The Commissioner is of the opinion that this petition should be
denied.
As the above procedural history of this proceeding clearly
demonstrates, the owner's assertion that it received no notice of
the complaint is belied by the owner's answer to same.
Furthermore, the complaint and default notice were not sent to
the incorrect address listed on the August 5, 1986 order, but to
DOCKET NUMBER: BG-210370-RO
the same address given by the tenant in her complaint, which is
the address stated on the tenant's 1983-1984 lease. Finally, the
owner's claim that the tenant's complaint was untimely is
clearly without merit: the complaint was filed five months before
the apartment was registered.
An Administrative appeal is not a de novo proceeding, but is
limited to the issues and evidence which were before the
Administrator. Accordingly, since the petitioner's excuse for
not submitting the rental documents to the Administrator is
without any merit, that evidence will not be considered on
appeal. [The fact that the evidence submitted on appeal
indicating a 1982 base date is contradicted by the owner's answer
to the complaint, which stated a 1974 base date, raises serious
doubt as to the credibility of the evidence offered on appeal.]
The Commissioner notes that although the answer was filed by a
managing agent and the petition is signed by a partner in the
company that owns the building, the rent registration records of
the Division list the same person who answered the complaint as
the managing agent from 1986 through 1990. Furthermore, in
proceeding number KC000820-S, filed July 24, 1984, the address
of the owner is given as the post office box of the same
individual. It is well settled that a principal is responsible
for an act of an agent within the scope of the agency.
Accordingly, the answer filed by the agent constitutes an answer
by the owner. Indeed, the Code's definition of "owner" includes
an agent of the owner.
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) to date and to produce
such records to the Division of Housing and Community Renewal
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
produce rent records for more than four years prior to the most
recent registration, and concomitantly, established a four-year
limitation on the calculation of rent overcharges.
It has been the Division of Housing and Community Renewal'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 Division of Housing and Community
Renewal has therefore applied Section 42A of the former Code to
overcharge complaints filed prior to April 1, 1984, requiring
DOCKET NUMBER: BG-210370-RO
complete rent records in these cases. In following this policy,
the Division of Housing and Community Renewal 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 Division of Housing and Community Renewal, 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 right 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 their
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. Mgt. v.
Eimicke, 148 A.D.2d 610, 539 N.Y.S.2d 667 (App. Div. 2d Dep't
1989), motion for leave to reargue or for leave to appeal to the
Court of Appeals denied (App. Div. 2d Dep't, N.Y.L.J., 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 Division of Housing
and Community Renewal 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 Dep't 1989), has
issued a decision in direct conflict with the holding in JRD.
The Lavanant court expressly rejected the JRD ruling, finding
that the Division of Housing and Community Renewal 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 Division of Housing and Community
Renewal is constrained to follow the JRD decision in determining
the tenant's overcharge complaint, limiting the requirement for
rent records to April 1, 1980. However, the owner submitted no
rent records to the Administrator and therefore was in default
even under the standards of the JRD decision. Accordingly, the
Commissioner finds that the Administrator properly determined
the lawful stabilized rent based on default procedures.
DOCKET NUMBER: BG-210370-RO
The record shows that the complaining tenant has vacated the
subject apartment.
The Order may, upon the expiration of the period in which the
owner may institute a proceedi g pursuant to Article seventy-
eight of the civil practice law and rules, be filed and enforced
by the tenant in the same manner as a judgment.
A copy of this Order will be served on the current tenant. The
Commissioner notes that the Administrator established the rent
for the complaining tenant's August 15, 1984 - August 14, 1985
lease as $222.85. Subsequent rent increases should have been
based on this figure.
THEREFORE, in accordance with the Rent Stabilization Law and Code
it is
ORDERED, that this petition be, and the same hereby is, denied
and the Rent Administrator's order be, and the same hereby is,
affirmed.
ISSUED:
ELLIOT SANDER
Deputy Commissioner
ADMINISTRATIVE REVIEW BUREAU
COVERING MEMORANDUM
ARB Docket No.: BG-210370-RO
DRO Docket No/Order No.: CDR20,541, AS AMENDED
Tenant(s): MARGARET NIEWIEROWSKI
Owner: ALL ISLAND REALTY
Code Section: 42A
Premises: 199 EAST SECOND STREET, NEW YORK, NY, APARTMENT 4-B
ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
Petitioner's allegation that the CAB overcharge complaint had
never been received is belied by the managing agent's answer to
same. Accordingly, the owner's new evidence on appeal was not
accepted and the owner remains in default even under JRD.
APPROVED:
Processing Attorney:
Supervising Attorney:
Bureau Chief:
Deputy Counsel:
Deputy Commissioner:
Mailed copies of Order and Determination to:
Tenant(s)
Owner
Tenant's Atty.
Owner's Atty.
Date: : by
signature
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