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 410183 RO
: DRO DOCKET NO. TC-050275-G
CAMPEC REALTY CORP. TENANT: MAUREEN PASKU
PETITIONER :
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW AND
MODIFYING RENT ADMINISTRATOR'S ORDER
On July 27, 1987, the above-named petitioner-owner filed a
Petition for Administrative Review against an order issued on July
3, 1987, by the Rent Administrator, 10 Columbus Circle, New York,
New York, concerning the housing accommodations known as 1431
First Avenue, New York, New York, Apartment No. 5FN, 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 Administrative Appeal is being determined pursuant to the
provisions of Sections 20C(1) and 42A of the former 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
February 1981 of a rent overcharge complaint by the tenant who
first moved to the subject studio apartment on July 15, 1978 at a
rental of $275.00 per month.
The owner was served with a copy of the complaint and was
directed to submit a complete rental history for the subject
apartment from the base date including copies of all leases.
BG 410183 RO
In response, the owner submitted leases from October 1, 1973
up through occupancy by the tenant herein except that the owner
omitted a claimed lease from December 1975 through November 1977
at a claimed rental of $225.00 per month. The owner also
submitted copies of bills and invoices for alleged improvements
and repairs made in the subject apartment from 1973 through 1979.
On June 9, 1987, the DHCR sent the owner a notice
specifically requesting leases documenting the tenancies for the
subject apartment from October 1, 1975 through December 1, 1977.
In a response dated June 10, 1987, sent by certified mail number
P282274376, the owner stated that it was enclosing the 1975-77
lease. However attached to the June 10, 1987 response was a copy
of a lease commencing December 1, 1977.
In Order Number CDR 30,787, the Rent Administrator determined
that due to the owner's failure to submit a complete rental
history, the default method would be used to establish an initial
legal regulated rent of $251.14 for the tenant herein, further
determined that the tenant had been overcharged in the amount of
$1462.28 through July 14, 1987, and directed the owner to refund
the overcharge to the tenant. In such order, it was also stated
that the owner was permitted to increase the tenant's rent by
$155.59 (1/40th of a total cost of $6223.51) due to the
installation of improvements in the subject apartment. However,
in the rent calculation chart which determined the amount of the
rent overcharge, the owner was only allowed rent increases of
$7.84 and $1.92 for the installation of new equipment.
In this petition, the owner alleges in substance that it
should not have been defaulted since it submitted a rental history
back to October 1, 1973, that it did submit a copy of the
December 1975 through NOvember 1977 lease and that with the rent
increases for new equipment, no rent overcharge occurred. A copy
of the aforementioned lease was not submitted with the owner's
petition.
In response to the owner's petition, the tenant contended in
substance that the Rent Administrator's order finding a rent
overcharge is warranted except that no rent increase is warranted
for any improvements since such improvements, if any, occurred
long prior to her tenancy, or were in the nature of ordinary
repairs and maintenance and that she did not consent to any rent
increase for improvements.
The Commissioner is of the opinion that this petition should
be denied and that the Rent Administrator's order should be
modified.
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 to date and produce them to
the DHCR upon demand. If the apartment was decontrolled from the
Rent Control Law after June 30, 1974, the owner must provide
BG 410183 RO
satisfactory documentary evidence of the apartment's date of
decontrol.
Section 20C(1) of the former Rent Stabilization Code provides
in pertinent part that due to the installation of new equipment or
improvements in a particular dwelling unit, the monthly
stabilization rent shall be increased by 1/40th of the total cost
provided however that such increase shall not be collectible
during the term of a lease then in effect or any renewal thereof
except upon written consent of the tenant.
In the instant case, the improvements and repairs alleged by
the owner consist of the following:
DATE ITEM COST
7-20-73 air conditioner $470.69
7-20-73 carpet $236.47
2-28-74 shades $ 55.37
10-11-74 paint $ 40.44
10-15-74 panelling $ 51.70
10-30-74 door $166.60
10-31-74 plumbing $ 54.54
12-9-74 install door $175.00
12-21-74 kitchen cabinets $300.24
12-21-74 stove $141.00
1-75 air cond. hole, $575.00
install cabinets and
bathroom tile
7-8-75 kitchen fixture $ 25.90
3-18-76 electric meters $266.67
11-16-76 repairs $ 12.00
11-28-76 repairs $ 45.60
10-24-77 intercom system & bells $266.67
6-28-78 linoleum $160.38
6-30-79 paint and supplies $129.84
8-7-79 air conditioner $365.35
9-10-79 stove $167.40
labor for painting, general $576.00
repairs
The Commissioner is of the opinion and finds that many of the
above items such as painting, plumbing, repairs and linoleum
consist of ordinary maintenance and repair work for which no
Section 20C(1) increase was warranted. Further some items do not
specifically designate the subject apartment and the tenant has
denied ever receiving the 8-7-79 air conditioner (cost $365.35).
Moreover, after examining the lease information submitted by the
owner, it does not appear that any of the items were installed
during a vacancy period and the owner has not shown that it
received the consent of any of the tenants in occupancy for any of
these installations. Finally, the first two items were installed
prior to the base date lease commencing October 1, 1973 and must
be considered to have been included in the base date rent. For
the foregoing reasons, the owner is not entitled to any Section
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20C(1) rent increase and the Rent Administrator's order is hereby
modified to delete the finding that the owner was entitled to
increase the tenant's rent by $155.59 pursuant to Section 20C(1).
it is noted that such finding was never actually implemented in
the rent calculation chart determining the rent overcharge.
Regarding the Section 20C(1) rent increases of $7.84 and $1.92
included in the rent calculation chart, such increases will be
allowed to remain since the tenant did not file her own petition
against the amount of the overcharge determined by the Rent
Administrator.
With regard to the owner's contention that it should not have
been defaulted in that it did submit a complete rental history, it
is noted that contrary to the owner's allegation on appeal, it
never submitted the December 1975 lease requested by the DHCR.
However, even if such alleged lease was accepted and the owner
were not defaulted, the resulting rent overcharge would be larger
than that found by the default method since the owner's request
for Section 20C(1) rent increases is disallowed. In the absence
of a timely petition for administrative review by the tenant, the
Commissioner deems it appropriate to deny the owner's petition and
affirm the amount of the overcharge determined by the Rent
Administrator.
Because this determination concerns lawful rents only through
July 14, 1987, the owner is cautioned to adjust subsequent rents
to an amount no greater than that determined by the Rent
Administrator's order plus any lawful increases and to register
any adjusted rents with this order and opinion being given as the
explanation for the adjustment.
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 as a judgment
or not in excess of twenty percent per month of the overcharge may
be offset against any rent thereafter due the owner.
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 in accordance
with this order and opinion. The amount of the rent overcharge
through July 14, 1987 is $1,462.38.
ISSUED
ELLIOT SANDER
Deputy Commissioner
ADMINISTRATIVE REVIEW BUREAU
COVERING MEMORANDUM
ARB Docket No.: BG 410183 RO
DRO Docket No/Order No.: TC-050275-G
Tenant(s): Maureen Pasku
Owner: Campec Realty Corp.
Code Section: 20C(1) and 42A of former RSC
Premises: 1431 First Avenue, New York, New York, Apt. 5FN
Order and Opinion Denying Petition and Modifying Order
Petition denied on basis amount of rent overcharge was
correctly determined. Order modified to delete finding that owner
was entitled to Section 20C(1) rent increase of $155.59 which
increase was in fact not included in calculation of rent
overcharge.
APPROVED:
Processing Attorney:
Supervising Attorney:
Director:
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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