BG 610205 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. BG 610205 RO
: DRO DOCKET NO. B-3101662-R
RALPH LANGSAM TENANT: EVELYN ROBINSON
PETITIONER :
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On July 16, 1987, the above-named petitioner-owner filed a
Petition for Administrative Review against an order issued on June
18, 1987, by the Rent Administrator, 10 Columbus Circle, New York,
New York, concerning the housing accommodations known as 1504
Sheridan Avenue, Bronx, New York, Apartment No. 4N, wherein the
Rent Administrator determined that the owner had overcharged the
tenant.
The Administrative Appeal is being determined pursuant to the
provisions of Section 2526.1 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
March, 1984, of a rent overcharge complaint by the tenant.
The owner was served with a copy of the complaint and was
requested to submit rent records from the base date to prove the
lawfulness of the rent being charged. In an answer to the
complaint filed on September 26, 1984, the owner submitted copies
of leases from August 1, 1976, but stated that the base date was
June 30, 1974 and that a prior tenant was paying $200.00 per month
in rent on JUne 30, 1974. ON April 10, 1986, the owner was
directed to submit copies of al leases from June 30, 1974. IN a
response dated April 16, 1986, the owner stated that it was
enclosing a rent register showing the prior tenant was being
charged $200.00 per month on the base date, but did not actually
submit a copy of the rent register. On March 18, 1987, the owner
was served with a Final Notice of Pending Default directing it to
submit a complete rental history. No further response was
submitted.
In Order Number CDR 30,661, the Rent Administrator determined
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that, due to the owner's failure to submit a complete rental
history, the rent would be established at $224.67 effective
October 1, 1977, that the tenant had been overcharged in the
amount of $4490.16, and directed the owner to refund such
overcharge to the tenant as well as to reduce the rent.
In this petition, the owner contends in substance that it did
submit a complete rental history, that in any event it was not
required to submit a rental history prior to April 1, 1980, and
that the establishment of the rent at $224.67 was in error as all
other tenants in the same line as the subject apartment were
paying a higher rental than $224.67.
The Commissioner is of the opinion that this petition should
be denied.
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 (or the date the apartment
became subject to rent stabilization, if later) and to produce
such records to the DHCR upon demand.
Section 26-516 of the Rent Stabilization Law, effective April
1, 1984, limited an owner's obligation to provide rent records by
providing that an owner may not be required to maintain or to
produce rent records for more than four (4) years prior to the
most recent registration, and concomitantly, established a four
year limitation on the calculation of rent overcharges.
It has been the DHCR's policy that overcharge complaints
filed prior to April 1, 1984, are to be processed pursuant to the
Law or Code in effect on March 31, 1984. (see Section 2526.1 (a)
(4) of the current Rent Stabilization Code.) The DHCR has
therefore applied Section 42A of the former Code to overcharge
complaints filed prior to April 1, 1984, requiring complete rent
records in these cases. In following this policy, the DHCR has
sought to be consistent with the legislative intent of the Omnibus
Housing Act (Chapter 403, Laws of 1983), as implemented by the New
York City Conciliation and Appeals Board (CAB) the predecessor
agency to the DHCR, to determine rent overcharge complaints filed
with the CAB prior to April 1, 1984, by applying the law in effect
at the time such complaints were filed so as not to deprive such
tenants of their rights to have the lawful stabilized rent
determined from the June 30, 1974 base date and so as not to
deprive tenants whose overcharge claims accrued more than four
years prior to April 1, 1984 of the right to recover such
overcharges. In such cases, if the owner failed to produce the
required rent records, the lawful stabilized rent would be
determined pursuant to the default procedure approved by the Court
of Appeals in 61 Jane Street Associates v. CAB, 65 N.Y.2d 898, 493
N.Y. S. 2d 455 (1985).
However, it has recently been held in the case of J.R.D.
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Mgmt. v. Eimicke, 148 A.D.2d 610. 539 N.Y.S. 2d 667 (App. Div. 2d
Dept., 1989). motion for leave to reargue or for leave to appeal
to the Court of Appeals denied ( App. Div. 2d Dept., N.Y.L.J.,
June 28, 1989. p.25, col.1), motion for leave to appeal to the
Court of Appeals denied (Court of Appeals, N.Y.L.J., Nov. 24,
1989, p.24, col.4)., motion for leave to reargue denied (Court of
Appeals, N.Y.L.J., Feb. 15, 1990, p.25, col.1), that the Law in
effect at the time of the determination of the administrative
complaint rather than the Law in effect at the time of the filing
of the complaint must be applied and that the DHCR could not
require an owner to produce more than four years of rent records.
Since the issuance of the decision in JRD, the Appellate
Division, First Department, in the case of Lavanant v. DHCR, 148
A.D.2d 185, 544 N.Y.S.2d 331 (App. Div. 1st Dept. 1989), has
issued a decision in direct conflict with the holding in JRD. The
Lavanant court expressly rejected the JRD ruling finding that the
DHCR may properly require an owner to submit complete rent
records, rather than records for just four years, and that such
requirement is both rational and supported by the Law and
legislative history of the Omnibus Housing Act.
Since in the instant case the subject dwelling unit is
located in the First Department, the DHCR is following the
Lavanant decision in determining the tenant's overcharge
complaint, and the owner is required to submit a rental history
from June 30, 1974. An examination of the records discloses that
despite being given several opportunities to do so, the owner has
not submitted a rental history from June 30, 1974, but only from
August 1, 1976 although conceding that the base rent date was June
30, 1974. In addition the Rent Administrator using the Section
42A default procedure correctly established an initial legal
stabilization rent of $224.67 - the complaining tenant's vacancy
rent minus vacancy and guideline allowances. The Rent
Administrator properly did not use the lowest stabilized rent in
the same size apartment as urged by the owner on appeal since such
rent would have been higher than $224.67, and the 42A default
procedure requires that the lowest amount found by these methods
plus one other method not relevant herein be used. Accordingly,
the Rent Administrator's order was warranted.
THEREFORE, in accordance with the provisions of the Rent
Stabilization Law and Code, it is
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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, affirmed.
ISSUED
ELLIOT SANDER
Deputy Commissioner
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