Docket Number: BH 210181-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 210181-RO
TOWER MGMT. CO., D.R.O. DOCKET NO.: K 3103962-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 10, 1987, the above-named petitioner-owner 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 402 at 1679 E. 3rd Street, Brooklyn, New York, wherein
the District Rent Administrator determined that the tenant had been
overcharged.
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 on March 21, 1984 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 DHCR. The tenant took occupancy pursuant to a
lease commencing April 1, 1983 and expiring March 31, 1985 at a
monthly rent of $325.00.
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 answer, the owner submitted leases for the subject
apartment from June 1, 1979.
In Order Number CDR 30,801, the District Rent Administrator
established the lawful stabilized rent based on the owner's failure
to submit a complete rental history for the subject apartment and
directed a refund of $1,415.67, including interest on overcharges
collected after April 1, 1984, to the tenant.
In this petition, the owner contends that the District Rent
Administrator failed to consider the rental documentation submitted
by the owner. The owner resubmits the leases from June 1, 1979
with its petition and asserts that the tenant's rent was within the
lawful guidelines amount.
The Commissioner is of the opinion that this petition should be
granted in part.
Section 42A of the former Rent Stabilization Code requires that an
owner retain complete records for each stabilized apartment in
Docket Number: BH 210181-RO
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,
Docket Number: BH 210181-RO
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,
limiting the requirement for rent records to April 1, 1980.
The lawful stabilized rent is recalculated from April 1, 1980 on
the attached rental history chart, which is fully made a part of
this order. The total amount of overcharge is $198.96.
Any arrears owed by the tenant as a result of this order may be
paid to the owner in equal monthly installments over the course of
the next 12 months.
Because this determination concerns lawful rents only through March
31, 1985, the owner is cautioned to adjust subsequent rents to an
amount no greater than that determined by this order plus any
lawful increases, and to register any adjusted rents with this
order and opinion being given as the explanation for the
adjustment.
THEREFORE, in accordance with the Rent Stabilization Law and Code,
it is
ORDERED, that this petition be and the same hereby is granted in
part and that the District Rent Administrator's order be and the
same hereby is modified to the extent hereinabove indicated.
ISSUED:
ELLIOT SANDER
Deputy Commissioner
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