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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 410134 RO
: DISTRICT RENT OFFICE
James Lavin, DOCKET NO. TC-070864-G
TENANT: Fred Grundy
PETITIONER :
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ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
On July 1, 1987, the above-named owner filed a Petition for
Administrative Review of an Order issued on May 28, 1987 by the
Rent Administrator concerning the housing accommodations known as
164 East 88th Street, New York, New York, Apartment No. 5FE,
wherein the Rent Administrator determined that the owner had
overcharged the tenant.
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 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 on March
17, 1983 of a rent overcharge complaint by the tenant.
The Division did not receive a response to the tenant's March 17,
1983 complaint.
On September 22, 1986 the owner was served with a Final Notice of
Pending Default citing the owner's failure to submit to the
Division a complete rental history and informing the owner of the
final opportunity to do so.
In Order Number TC-070864-G, the Rent Administrator determined
that, due to the owner's failure to submit a complete rental
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history, the lawful stabilized rent was based on the Section 42A
default procedure, effecting a rent overcharge of $5,774.28,
including interest on that portion of the overcharge occurring
on and after April 1, 1984.
In this petition, the owner requests reversal of the Rent
Administrator's Order and contends in substance that, among other
things, he purchased the building on May 10, 1984 and that the
Administrator's determination was unjust inasmuch as he was never
informed by the Division that the tenant filed a rent overcharge
complaint. Rather the tenant had just questioned rent arrears
alleged to have occurred subsequent to the commencement of his
February 1980 vacancy lease. The owner further states that he
served the tenant the 1984 apartment registration but that the
tenant never challenged said registration.
In answer to the owner's petition, the tenant stated in
substance that, among other things, the current owner was
responsible for all claims against the prior owner. The tenant
further stated that he was entitled to a rent rollback,
notwithstanding the owner's contention that it was never informed
of the overcharge complaint.
The Commissioner is of the opinion that this petition should be
granted.
An examination of the record in this case discloses that,
inasmuch as the tenant specifically stated in his overcharge
complaint that he was charged the lawful stabilization rent on
the commencement of his vacancy lease which was February 1, 1980
(but contested rent increases charged thereafter), the owner was
not required to provide a rental history before February 1, 1980
(the commencement of said vacancy lease).
Since the record contains a rental history going back to February
1, 1980, the owner cannot be held to have defaulted.
Furthermore, for the period from the commencement of the
complainant tenant's vacancy lease (February 1, 1980) through the
date of issuance of the Administrator's Order (May 28, 1987),
there is no evidence that the tenant paid any excess in rents
lawfully allowed under the applicable rent guidelines.
Therefore, the Administrator's Order finding a rent overcharge
must be revoked.
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 provisions of the Rent
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, revoked, and it is
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found that no rent overcharge occurred.
ISSUED:
JOSEPH A. D'AGOSTA
Acting Deputy Commissioner
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