BH 2101570 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-2101570-RO
LENOX ASSOC.,
DISTRICT RENT OFFICE
DOCKET NO.: K-3105826-R
(CDR, 30, 888)
PETITIONER
----------------------------------X TENANT: NANCY SNOWDEN
ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
On August 20, 1987, the above-named petitioner-owner filed a
Petition for Administrative Review against an order issued on
July 16, 1987, by the Rent Administrator, 10 Columbus Circle, New
York, New York, concerning the housing accommodations known as
222 Lenox Road, Brooklyn, New York, New York, Apartment No. 5W
wherein the Rent Administrator determined that the owner had
overcharged the tenant.
The issue in this appeal 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 issues raised by the administrative appeal.
This proceeding was originally commenced by the filing in March
29, 1987 of a rent overcharge complaint by the tenant.
In answer to the tenant's complaint, the owner stated in
substance that it received the leases from a foreclosure and
submitted a rental history from April 1, 1980.
In Order Number K-3105826-R, the Rent Administrator determined
that, due to the owner's failure to submit a complete rental
history, the tenant had been overcharged in the amount of
$4,307.42 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
submitted all the rent records it had.
The Commissioner is of the opinion that this petition should be
granted.
Section 42A of the former Rent Stabilization Code requires that
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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) to date and to produce
such records to the DHCR upon demand.
Section 26-516 of 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
produce rent records for more than 4 years prior to the most
recent registration, and concomitantly, established a 4 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 right 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 4 years prior to April
1, 1984 of their 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. Mgt. v.
Eimicke, 148 A.D.2d 610, 539 N.Y.S.2d 667 (App. Div. 2d Dep't
1989), motion for leave to reargue or for leave to appeal to the
Court of Appeals denied (App. Div. 2d Dep't, 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 4 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 Dep't 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 Second Department, the DHCR is constrained to follow the JRD
decision in determining the tenant's overcharge complaint,
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limiting the requirement for rent records to April 1, 1980. An
examination of the rent records from April 1, 1980 discloses that
no rent overcharge occurred. Therefore, the Rent
Administrator's order finding a rent overcharge must be revoked.
If the owner has already complied with the District Rent
Administrator's order and there are arrears due to the owner as a
result of the instant determination, the tenant shall be
permitted to pay off the arrears in twelve equal monthly
installments beginning with the first rent payment date after
issuance of this order and opinion. Should the tenant vacate
after the issuance of this order or have already vacated, said
THEREFORE, in accordance with the Appellate Division ruling in
JRD, it is
ORDERED, that this petition be, and the same hereby is, granted
and that the District Rent Administrator's order be, and the same
hereby is, revoked, and it is found that no rent overcharge
occurred.
ISSUED:
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JOSEPH A. D'AGOSTA
Acting Deputy Commissioner
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