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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 410020 RO
: DRO DOCKET NO.TC-76817-G
JONATHAN HELFAND SUBTENANT: SHERI LULINSKI
PETITIONER :
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On June 30, 1987, the above-named petitioner-prime tenant filed
a Petition for Administrative Review against an order issued on June
3, 1987, by the Rent Administrator, 10 Columbus Circle, New York,
New York, concerning the housing accommodations known as 200 West
86th Street, New York, New York, Apartment No. 10H, wherein the Rent
Administrator determined that the prime tenant
had overcharged the subtenants.
The Administrative Appeal is being determined pursuant to the
provisions of Sections 2520.6, 2520.13 and 2525.6 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
September, 1983, of a rent overcharge complaint by the subtenant
Sheri Lulinski in which Ms. Lulinski stated that she and two other
subtenants (Donna Seidman Lazarus and Linda Levy; later Heidi
Amsel moved in when Ms. Seidman Lazarus vacated) resided in the
subject apartment from September 1, 1982 to August 31, 1983 at a
rental of $900.00 per month paid to the prime tenant. Ms.
Lulinski further stated that she and her fellow subtenants had
been overcharged by $300.00 per month during this period.
In answer to the subtenant's complaint, the prime tenant
stated in substance that the rental of the subject apartment was
$600.00 per month, but that he had charged an extra $300.00 per
month for the use of kosher kitchen facilities (kosher dishes and
other utensils) and his Judaica library (about 2,000 volumes
currently valued at $40,000 according to the prime tenant); that
these items were mentioned in the sublease; that the $300.00
charge was fair and reasonable; that the subtenants extensively
damaged the subject apartment and failed to keep a properly kosher
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kitchen so that the prime tenant had to re-kosher the kitchen
after the subtenants vacated; and that due to these actions on the
part of the subtenants, Ms. Lulinski's complaint should be
dismissed.
In response to the prime tenant's answer, Ms. Lulinski denied
that any damages occurred in the subject apartment except for a
broken telephone she agreed to reimburse the prime tenant for and
denied requesting the use of the prime tenant's kosher equipment
or Judaica library when subleasing the subject apartment.
On January 31, 1984, subtenant Donna Seidman Lazarus
submitted a statement to the effect that she was an interested
party to these proceedings.
In Order Number CDR 30,480, the Rent Administrator determined
that the subtenants had been overcharged by the prime tenant in
the amount of $4103.36 from September 1, 1982 through August 31,
1983 and directed the prime tenant to refund such overcharge to
the subtenants. In the determination of the overcharge, the prime
tenant was permitted a 10% allowance due to furnishings in the
subject apartment. The complaining subtenant was listed as Sheri
Lulinski and the other subtenants were listed as Donna Seidman
Lazarus, Linda Levy, and Heidi Amsel.
In this petition, the prime tenant alleges in substance that
no overcharge should have been found due to the status of the
subject apartment as "a kosher facility and also as a specialized
Judaica research library"; that the Rent Administrator should have
taken into account substantial damage done to the subject
apartment and its contents by the subtenants such as broken
refrigerator shelves, a badly stained oriental rug, broken
toaster, clock, radio, typewriter, kitchen door, etc. and a
failure to keep the subject apartment properly kosher. In
addition the prime tenant questions the inclusion of Heidi Amsel
as a subtenant since Ms. Amsel failed to sign the original
sublease.
The Commissioner is of the opinion that this petition should
be denied.
Section 2525.6(b) of the Rent Stabilization Code provides in
pertinent part that the rental charged to a subtenant by a prime
tenant shall not exceed the legal regulated rent plus no more than
a ten percent surcharge payable to the prime tenant if the housing
accommodation is sublet fully furnished.
Section 2520.13 of the Rent Stabilization Code provides in
pertinent part that an agreement by the tenant to waive the
benefit of any provision of the Rent Stabilization Law or Code is
void. "Tenant" is defined in Section 2520.6(d) of the Rent
Stabilization Code to include any person or persons named on a
lease as lessee or lessees. This definition of tenant encompasses
subtenants.
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In the instant case, pursuant to Section 2525.6(b), the prime
tenant was limited to a 10% surcharge for the sublet of a fully
furnished apartment. The fact that kosher dishes and equipment
and an extensive collection of books were included in the
furnishings is not a sufficient basis to allow a higher surcharge.
In addition the fact that the kosher dishes, equipment and books
were specifically listed in the sublease does not warrant a
finding that a larger than 10% surcharge is allowable. Pursuant
to Section 2520.13, any agreement (this includes a lease
provision) to waive the benefit of the Rent Stabilization Law or
Code is void. Accordingly, the Rent Administrator correctly found
a rent overcharge of $4103.36.
To simplify matters for the parties and taking into account
the fact that the subtenants did not specify what portion of rent
each paid and the fact that only Sheri Lulinski signed the
original complaint, the prime tenant is directed to refund the
entire overcharge amount to Ms. Lulinski and once he makes such
full refund to Ms. Lulinski, will be under no further obligation
to the other subtenants. Ms. Lulinski is then directed to refund
to the other subtenants their share of the rent overcharge in
accordance with that portion of the rent each paid within thirty
days of receipt of payment from the prime tenant. If Ms. Lulinski
does not do so, the other subtenants may sue to enforce their
claims in a court of competent jurisdiction.
With regard to the prime tenant's allegation concerning
extensive damage in the subject apartment, such claim may be
pursued by the prime tenant in a court of competent jurisdiction
and has no effect on the overcharge determination made herein.
This order may upon the expiration of the period in which the
prime tenant may institute a proceeding pursuant to Article 78 of
the Civil Practice Law and Rules, be filed and enforced as a
judgment by the subtenant Sheri Lulinski.
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, denied, and, that the order of the Rent
Administrator be, and the same hereby is, modified to show that
the prime tenant must refund the entire overcharge amount to Sheri
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Lulinski and that Ms. Lulinski will then reimburse the other
subtenants in accordance with the amount of rent each paid. The
amount of the rent overcharge through August 31, 1983 is $4103.36.
ISSUED
ELLIOT SANDER
Deputy Commissioner
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