DOCKET NO. BH-110185-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. BH-110185-RO
:
WEST EIGHTH STREET REALTY CO., : D.R.O. DOCKET NO. K 3107971 R
:
:
PETITIONER :
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ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW IN PART
AND MODIFYING DISTRICT RENT ADMINISTRATOR'S ORDER
On August 4, 1987 the above-named petitioner-owner timely filed a
Petition for Administrative Review against an order issued on
July 7, 1987 by the District Rent Administrator, 10 Columbus
Circle, New York, New York, concerning housing accommodations
known as Apartment B-5 at 1684 West Eighth Street, Brooklyn,
New York, wherein the District Rent Administrator determined that
the tenant has been overcharged.
The Commissioner notes that this proceeding was initiated 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
provision 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 Commissioner has reviewed all of the evidence in the record
and has carefully considered that portion of the record relevant
to the issue raise by the administrative appeal.
This proceeding was originally commenced by the filing of a rent
overcharge complaint by the tenant with the New York City
Conciliation and Appeals Board, one of the predecessor agencies
to the Division of Housing and Community Renewal. The tenant
took occupancy pursuant to a lease commencing January 1, 1983 and
expiring December 31, 1983 at a monthly rent of $395.00.
The owner was served with a copy of the complaint and was
requested to submit rent records to prove the lawfulness of the
rent being charged. In the DHCR notice sent to the owner, the
owner was advised that it if claimed a rent increase for
improvements to the subject apartment, it was required to submit
supporting documentation to the Rent Administrator.
DOCKET NO. BH-110185-RO
In Order Number CDR30,820, the District Rent Administrator
determined that the tenant had been overcharged in the amount of
$1,849.86 including interest on the overcharges collected after
April 1, 1984, and directed the refund of this amount to the
tenant.
In this petition, the owner contends that the District Rent
Administrator failed to take into account improvements to the
subject apartment consisting of a new refrigerator and thermopane
windows. The owner submits a copy of its answer and bill for the
refrigerator and contract for 150 windows for the building.
In answer, the tenant asserts that the Administrator's order
determining an overcharge was correct.
The Commissioner is of the opinion that this petition should be
granted in part.
Section 20C(1) of the Code provides that where there has been an
installation of new equipment in a stabilized apartment, the
monthly stabilization rent for said unit may be increased by
1/40th the cost of such equipment provided the tenant then in
occupancy has consented thereto in writing. In addition, the
courts have ruled that an increase for new equipment installed
during a vacancy prior to the commencement of a new tenancy or
upon the commencement of a new tenancy and reflected in the
lease rent, may be collected without the new tenant's consent to
pay such increase (Matter of LeHavre Corp. v. Gribetz, et. al.,
N.Y.L.J., January 20, 1971, p. 19, col. 8 (Sup. Ct., Queens Co.,
Crisona, J.): Matter of Morton I. Hamberg v. CAB, N.Y.L.J.,
November 9, 1972, p. 18. col. 8, Sup. ct., N.Y Co. Sarafite,
J.).
The record in this case indicates that the owner submitted
during the proceeding before the Administrator a paid bill for a
new refrigerator dated March 30, 1979 in the amount of $314.52 .
This item was installed at the commencement of the tenancy of
the prior tenant (Massave) whose tenancy commenced April 1, 1979.
The Commissioner therefore find, that the owner is entitled to an
increase of $7.86 ($314.52 divided by 40) to be included in the
lawful rent commencing April 1, 1979.
Section 2529.6 of the Rent Stabilization Code effective May 1,
1987 provides that review pursuant to an administrative appeal
shall be limited to facts or evidence before a Rent Administrator
as raised in the petition. While the petitioner submits with the
petition certain facts or evidence which he or she establishes
could not reasonably have been offered or included in the
proceeding prior to the issuance of the order being appealed, the
proceeding may be remanded for determination to the Rent
Administrator to consider such facts or evidence.
Sections of the current Code dealing with procedural matters,
including the above-cited Section 2529.6, are applicable to all
PARS, whether filed before or after April 1, 1984.
The record in this case indicates that the owner failed to
DOCKET NO. BH-110185-RO
submit the contract for the windows during the proceeding before
the Administrator. The owner offers no explanation for its
failure to submit such documentation to the Administrator.
Therefore, the Commissioner finds that the owner is not entitled
to a rent increase for this item.
The Commissioner notes that even if the owner's documentation
were considered, the documentation does not indicate that the
total claimed cost was paid and does not include a breakdown of
the costs to indicate the amount attributable to windows for the
subject apartment.
The lawful stabilized rent is recalculated on the attached
rental history chart to include an increase for the refrigerator
as of April 1, 1979.
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 thereof may be
offset against any rent thereafter due the owner.
THEREFORE, in accordance with the Rent Stabilization Law and
Code, it is
ORDERED, that the petition be and the same hereby is granted in
part and the District Rent Administrator's order be and the same
hereby is modified in accordance with this order and opinion.
The lawful stabilization rents and amount of overcharge are
established on the attached chart which is fully made a part of
this order.
ISSUED:
ELLIOT SANDER
Deputy Commissioner
ADMINISTRATIVE REVIEW BUREAU
COVERING MEMORANDUM
ARB Docket No.: BH-110185-RO
DRO Docket No/Order No.: K 3107971 R
Tenant(s): LEO AND ELIZABETH REEVES
Owner: WEST EIGHTH STREET REALTY CO.
Code Section:
Premises: 1684 WEST EIGHTH STREET, BROOKLYN, APARTMENT B-5, NY
ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW IN PART
AND MODIFYING DISTRICT RENT ADMINISTRATOR'S ORDER
DRA's order is modified to include Section 20(C)1 increase for a new
refrigerator. Documentation was submitted to the DRA. No increase
for windows which no documentation was submitted to the DRA.
APPROVED:
Processing Attorney:
Supervising Attorney:
Bureau Chief:
Deputy Counsel:
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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