STATE OF NEW YORK
DIVISION OF HOUSING AND COMMUNITY RENEWAL
OFFICE OF RENT ADMINISTRATION
92-31 UNION HALL STREET
JAMAICA, NEW YORK 11433
IN THE MATTER OF THE ADMINISTRATIVE : ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO. BH 210241-RT
: DISTRICT RENT OFFICE
Susan Levy, DOCKET NO. K 3104739-R/T
ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On August 25, 1987 the above-named petitioner-tenant filed a
Petition for Administrative Review against an order issued on
July 22, 1987, by the Rent Administrator concerning the housing
accommodations known as 40 Clinton Street, Brooklyn, New York,
Apartment No. PHA, wherein the Rent Administrator determined that
the owner had overcharged the tenant.
The Commissioner notes that this proceeding was filed 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
provisions 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 Administrative Appeal is being determined pursuant to the
provisions of Section 42A of the former Rent Stabilization Code.
The issue herein is whether the Rent Administrator's order was
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 on May 29,
1984 of a rent overcharge complaint by the tenant. The tenant
had assumed occupancy on May 1, 1975 pursuant to a two year lease
at a rent of $250.00 per month.
In response to the tenant's complaint, the owner stated that
there were no leases available prior to the tenant's occupancy.
In Order Number K 3104739-RT, the Rent Administrator determined
that due to the owner's failure to submit a complete rental
history, the owner had collected a rent overcharge of
$4,096.24 including interest on that portion of the overcharge
occurring on and after April 1, 1984.
In this petition, the tenant objects to the use of the rent of a
comparable apartment from the 1984 rent roll in the default rent
calculations, contending that a much lower rent would be derived
if all guidelines increases were rolled back until 1975, when the
tenant assumed occupancy. The tenant also contends that the rent
for the lease term commencing May 1, 1979 remained at $294.30
throughout the entire three year lease period, and was not
increased to $295.32, as listed on the calculation chart.
Additionally, the tenant argues that the unlawful rent increases
were intentional, and merit treble damages. Finally, the tenant
disputes the amount of interest calculated by the Administrator.
The owner did not respond to the petition.
The Commissioner is of the opinion that this petition should be
Although the Administrator's order correctly employed the default
procedures for determining the lawful rent that were 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), the intervening 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), preempts all issues raised herein by the
petitioner-tenant insofar as it mandates the application of 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, with the result that the
owner is not required to produce more than 4 years of rent
records. As recalculated from the adjusted base rent of $294.30,
which was the lease rent in effect on April 1, 1980, all
previously determined overcharges are eliminated.
Since all of the petitoner's objections are thus obviated by the
recalculation of the lease history from the adjusted base date,
in accordance with the JRD decision, the tenant's petition must
be denied as moot.
It is noted, however, that the owner did not elect to file its
own appeal. Accordingly, the Commissioner finds no remaining
issues subject to review, and the order is affirmed.
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 in the same
manner as a judgment or not in excess of twenty percent per month
thereof may be offset against any rent thereafter due the owner.
THEREFORE, pursuant to the Rent Stabilization Law and Code, it
ORDERED, that this Petition be, and the same hereby is, denied,
and that the Administrator's order be, and the same hereby is,
JOSEPH A. D'AGOSTA
Acting Deputy Commissioner