Docket Number: BH 110232-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
----------------------------------X
IN THE MATTER OF THE ADMINISTRATIVE ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.: BH 110232-RO
FON-MAY FAN D.R.O. DOCKET NO.: Q-001958-R
PETITIONER Tenant: Florence Lynn
----------------------------------X
ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On August 25, 1987, the above named petitioner-owner filed a
Petition for Administrative Review against an order issued on
August 5, 1987, by the Rent Administrator at Gertz Plaza, Jamaica,
New York, concerning housing accommodations known as apartment 1-K
at 216-10 77th Avenue, Bayside, New York, wherein the Administrator
established the stabilized rent and directed the owner to refund
$1,986.99, including interest from April 1, 1984.
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 in the administrative appeal.
This proceeding was originally commenced on August 25, 1985 by the
filing of a complaint of rent overcharge by the tenant. The tenant
alleged that she had first taken occupancy under a one year lease
(February 1, 1985 to January 31, 1986) at a monthly rental of
$502.50.
The owner submitted an answer to the complaint including a
description of the rental history from April 1, 1984, proof of
service of the initial registration statement on the tenant in
occupancy on April 1, 1984 and an invoice from Kapic Bros.
Construction Co., Inc. and a cancelled check indicating that
certain work (that is, "repair floor and bathroom. Change to new
window") had been done in the subject apartment on March 4, 1985 at
a cost of $800.00.
On the chart attached to and made a part of the order, the
Administrator established the stabilized rent.
In its Petition, the owner contends that the Administrator erred on
the rent calculation chart attached to the order. The owner states
that it was entitled to a vacancy allowance of 7.5% with the
tenant's initial lease and that it should have been credited with a
rent increase thereunder based on improvements costing $1,348.80.
The owner further alleges that if it had been so credited, no
overcharges would have been found. With the Petition the owner
submits an invoice from Stephen Thorpe, Inc. "Plumbing and Heating"
for $609.49, and a cancelled check for that sum. Also submitted
is a work proposal from Kapic Bros. Construction Co., Inc. dated
January 3, 1985. It indicates that repair of wood floors in the
Docket Number: BH 110232-RO
bedroom and living room and installation of new tiles in the
bathroom were proposed to be done at a cost of $800.00. Further
submitted were a copy of the same Kapic Bros. invoice and cancelled
checks submitted below and described hereinabove.
The tenant's answer opposing the Petition, in substance, asks that
the order of the Rent Administrator be affirmed, and that the
Petition be denied.
The Commissioner is of the opinion that the Petition should be
denied.
The Commissioner finds that under Guidelines Order #16, an owner
was not entitled to a vacancy allowance if the total resulting rent
for a one year lease exceeded $283.75. Therefore, since the legal
rent determined by the Administrator for the tenant's vacancy lease
was $437.80, the Administrator properly denied the owner a credit
for a 7.5% vacancy allowance. The Commissioner further finds that
the Stephen Thorpe invoice was submitted for the first time on
appeal and therefore is not within the scope of review on appeal.
The Commissioner further notes that, even if said invoice were
within the scope of review, no increase would be credited to the
owner based thereon since the work described in said invoice was,
clearly, repair work. As to the Kapic Bros. work, the Commissioner
finds that the work proposal is submitted for the first time on
appeal and it is, therefore, not within the scope of review on
appeal. Moreover, were it within the scope of review, it would not
substantiate the owner's entitlement to a rent increase based on
improvements. First, the proposal describes work which is clearly
repair work (the floor repairs) and work which possibly could
constitute an improvement (the new tile work), but the costs for
each are not broken down. Second, the proposal, as a probative
document, would have to yield to the invoice, the former being, at
best, evidence of proposed action; the latter being evidence of
what in fact was done. The invoice states nothing about tile work,
describes repairs and is undecipherable as to "change to new
window."
The Commissioner notes that the Division's registration data for
this apartment shows that as of July 20, 1989, the apartment became
exempt from regulation as a New York City cooperative or
condominium apartment. Therefore, whether or not the apartment was
purchased by the subject tenant, as to this proceeding, the
Commissioner finds that the tenant must be deemed to have vacated
the apartment.
Docket Number: BH 110232-RO
The Commissioner notes that the Administrator's order may, upon the
expiration of the period in which the owner may institute a
proceeding pursuant to Article Seventy-eight of the Civil Practice
Law and Rules, be filed and enforced by the tenant in the same
manner as a judgment.
THEREFORE, pursuant to the Rent Stabilization Law and Code, it is
ORDERED, that this Petition be, and the same hereby is, denied.
ISSUED:
ELLIOT SANDER
Deputy Commissioner
|
