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.: BB 810335 RO
FRAKEN BUILDERS, INC.
DRO DOCKET NO.: WNR 86-S-84/R
TENANT: TAMMY PALUMBO
PETITIONERS
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ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
The above-named petitioner-owner timely filed a Petition for
Administrative Review against an order issued on January 27, 1987,
by the Rent Administrator at 99 Church Street, White Plains, New
York, concerning housing accommodations known as apartment number
1A at 769 Pelham Road, New Rochelle, New York, wherein the
Administrator found that the owner had overcharged the tenant
$515.00 by collecting that sum from the tenant under the guise of
"key money" and directed the owner to refund said sum to the
tenant.
The Commissioner has reviewed all of the evidence in the record and
has carefully considered that portion of the evidence relevant to
the issues raised in the administrative appeal.
The issue in this appeal is whether the relief denied to a tenant
in a prior proceeding may be granted to that tenant in a
subsequently opened proceeding based, essentially, on the same
facts but with the additional allegation that the tenant has
located amongst the tenant's own records, and is now submitting,
certain documentary evidence which proves the tenant's entitlement
to the relief sought.
This proceeding was originally commenced on August 18, 1986, by the
tenant's filing of a complaint of rent overcharge. The tenant
alleged that the tenant had taken occupancy on December 15, 1983
under a lease whose term commenced on that date and expired on
December 31, 1985; and which provided for a monthly rental of
$515.00. The tenant also alleged that at or about the time the
tenant took occupancy, the tenant had paid one half month's rent
for the balance of December, 1983 ($257.50 by check #117), January
1984's rent ($515.00 by check #127), a security deposit equal to
one month's rent ($465.00 by check #118: which, with the tenant's
$50.00 deposit added up to $515.00) and $515.00 "key money" in cash
(which the tenant claims is evidenced by a receipt dated December
11, 1983). The tenant further alleges in the complaint that "I had
filed another RA-89 [overcharge complaint form] for refund of the
key money, but neglected to attach all of the supporting evidence
for my case. This time all appropriate copies of checks and
receipts are attached."
In its answer to the complaint and in response to the
Administrator's request for additional information, the owner, in
substance, cited the Administrator's order of July 24, 1986 (issued
under Docket Number WNR86-S-40/R) wherein the Administrator had
found that the tenant had failed to submit any evidence to
substantiate the claim of paying an amount in addition to one
month's rent and one month's security; argued that the issues had
been disposed by that order; asserted that the December 11, 1983
receipt, on its face, states that it was for February's [1984]
rent; and requested a hearing on the facts.
In the appealed order the Administrator stated that the tenant had
proven that she had been overcharged $515.00.
In its Petition for Administrative Review, the owner asserts, in
substance, that the Administrator had ignored proper procedure in
opening a second proceeding, based on evidence that was always in
the tenant's possession, after the tenant had been denied the
relief sought in the first proceeding; the proper procedure would
have been for the tenant to have filed a petition for
administrative review from the first order; this violation of
proper procedure was compounded by the substance of the second
(the appealed) order; the $515.00 paid by the tenant, and which the
tenant alleged was "key money" was the February, 1984 rent payment;
and it was error for the Administrator to have issued the appealed
order without requiring the tenant to show that that was not the
February rent payment and without holding a hearing.
Although afforded the opportunity to do so, the tenant has failed
to respond to the Petition.
The Commissioner is of the opinion that the petition should be
granted.
The Commissioner finds that the tenant had not appealed the July
24, 1986 order; that in that order the Administrator indicated that
the December 11, 1983 receipt had been before him; that it was
error for the Administrator to have opened a second proceeding
based on these same facts as there had not been (nor has there
since been) a showing that the prior order was issued as the result
of illegality, irregularity in a vital matter or fraud; and that
the receipt on which the tenant relies states on its face that it
is a receipt for February's rent: in summary, both procedurally and
substantively, the appealed order was issued in error.
The Commissioner therefore finds that the petition should be
granted and the appealed order should be revoked.
THEREFORE, pursuant to all of the applicable statutes and
regulations, it is
ORDERED, that this Petition be, and the same hereby is granted and
that the Administrator's order be, and the same hereby is revoked.
ISSUED:
JOSEPH A. D'AGOSTA
Acting Deputy Commissioner
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