Docket Number: BA-210042-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.: BA 210042-RO
:
S. R. DEMETIRIOUS,
DRO DOCKET NO.: Q 18311
PETITIONER :
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
AND MODIFYING ADMINISTRATOR'S ORDER
On January 15, 1987, the above-named petitioner-owner filed a
Petition for Administrative Review against an order issued on
December 12, 1986 by the District Rent Administrator, 2 World Trade
Center, New York, New York, concerning housing accommodations known
as 610 6th Street, Apartment 3B, Brooklyn, New York, wherein the
Administrator determined the tenant had been overcharged and awarded
tenant $3,538.79 in overcharges.
The Commissioner has reviewed all of the evidence in the record and
has carefully considered that portion of the record relevant to the
issues raised by the petition for administrative review.
This proceeding was commenced on July 27, 1984 when the tenants
filed objection to the initial registration in which they asserted
that the registered rent of $470.00 is an overcharge.
In answer to the complaint, the owner submitted leases dating from
September 1, 1979 and stated that the rents charged in all vacancy
and renewal leases were carefully calculated per their respective
Guideline allowances.
In an order dated December 12, 1986, the District Rent Administrator
established the lawful stabilized rent, determined that the tenant
had been overcharged and directed the owner to refund overcharges of
$3,538.79 including interest on overcharges collected on or after
April 1, 1984.
In its petition the owner contends that the tenants' objection to
the rent registration was not timely filed, that the District Rent
Administrator erroneously listed the lease terms thus applying the
wrong Guidelines increases, and that the order of the District Rent
Administrator imposes interest, but in error uses treble damage
language, and that the Adminstrator failed to include certain
allowable increases for improvements to the apartment. The owner
Docket Number: BA-210042-RO
asserts that the registration for the subject apartment was prepared
March, 1984 and states that it is in the process of obtaining proof
of service from the Rent Stabilization Association. No such proof
has been submitted.
The tenants respond stating in pertinent part, that their objection
to the rent registration was timely filed, and that the owner is not
entitled to a rent increase for renovations which the tenants paid
for and installed themselves. The tenants assert that they have
been overcharged rent.
The Commissioner is of the opinion that this petition should be
denied.
Section 2526.1(a)(3)(ii) of the Rent Stabilization Code provides in
pertinent part, that for objections filed within 90 days of the
initial registration of the housing accommodations, the legal
regulated rent is the rent charged and paid on April 1, 1980. Since
the owner herein has not submitted any evidence to establish when
the registration was served on the tenant, the objection filed on
July 27, 1984 is deemed to have been filed within 90 days.
As for the lease terms that the owner asserts were incorrectly
stated by the Administrator, the Commissioner notes that the
Administrator's Rent Calculation Chart shows a lease term of
November 1, 1980 to October 30, 1981 for the one year renewal lease
of tenant- Dixon. Since the subsequent renewal for this tenant
would have commenced on November 1, 1981 and the vacancy lease of
tenant- Poon commenced on June 1, 1982, the Administrator noted that
both leases commenced within Guideline No. 13 and only one increase
per guideline is permitted. The owner now contends in the petition
that the first renewal for tenant- Dixon was for ten months, ending
August 31, 1981 and the next renewal which the owner asserts was not
submitted because it was never returned by the tenant, commenced
September 1, 1981 in Guideline No. 12a.
The Commissioner finds that no adjustment in the lease terms or the
overcharges computed by the Administrator is warranted. A careful
examination of the November 1, 1980 lease reveals that the words
"ten months" appear to be a modification of the original. A ten
month term for a renewal lease is unusual and is particularly
suspect when the next renewal lease is conveniently not available.
No adjustment is warranted for alleged improvements to the floor and
ceiling either. Pursuant to Section 2529.6 of the Rent
Stabilization Code, the scope of review in administrative appeals is
limited to facts or evidence before the Administrator unless it is
established that certain facts or evidence could not reasonably have
been offered or included in the proceeding prior to the issuance of
the order being appealed. In the instant case, the owner did not
submit any receipts regarding improvements to the ceiling and floor
Docket Number: BA-210042-RO
when it submitted a rental history in response to the tenant's
complaint. The owner's explanation that these documents were not
submitted before because it assumed that the tenant's objection
would be dismissed as untimely is not credible since the owner did
submit an answer and leases to substantiate the rents charged.
Also, the tenants dispute that the alleged improvements were made
and the receipts submitted with the petition are not conclusive and
would not have justified a rent increase even if submitted to the
Administrator.
The Administrator's order states that treble damages are being
assessed because the owner did not submit evidence to establish that
the overcharge was not willful. However, since the Rent Calculation
Chart indicates that interest, and not treble damages, was added to
overcharges collected after April 1, 1984, that portion of the
Administrator's order assessing treble damages should be deleted.
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 District Rent Administrator's order be, and the same hereby is,
modified in accordance with this Order and Opinion.
ISSUED:
ELLIOT SANDER
Deputy Commissioner
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