BH 410091 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 410091 RO
: DRO DOCKET NO.TC-65151-G
S. J. LANDAU CORPORATION TENANTS: DAVID AND TINA
ASHER LEVINE
PETITIONER :
------------------------------------X
ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On August 19, 1987, the above-named petitioner-owner filed a
Petition for Administrative Review against an order issued on July
21, 1987, by the Rent Administrator, 10 Columbus Circle, New York,
New York, concerning the housing accommodations known as 400 East
55th Street, New York, New York, Apartment No. 5G, 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 2526.1 of the current Rent Stabilization
Code.
The issue herein 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 issue raised by the administrative appeal.
This proceeding was originally commenced by the filing in
August 1982 of a rent overcharge complaint by the tenants who
stated that they first moved to the subject apartment on June 1,
1981 at a monthly rental of $603.87. The tenants stated in their
complaint that prior tenant Paul Weissman entered into a two year
vacancy lease commencing on November 1, 1978 at a monthly rental
of $420.13; that the Weissman lease was then assigned to Linda
Green effective February 1, 1979 at a monthly rental of $441.14
which represented an illegal increase over Mr. Weissman's rent and
BH 410091 RO
that Ms. Green then renewed her lease for a two year period
effective November 1, 1980, also at an illegal rent.
In answer to the tenants' complaint, the owner submitted a
rental history for the subject apartment and stated in substance
that although it took a 5% rent increase upon the assignment of
the lease to Linda Green effective February 1, 1979, it did not
take a vacancy allowance when Ms. Green renewed the lease so that
no overcharge should be found for the current tenants.
In Order Number CDR 30,958, the Rent Administrator determined
the lawful stabilization rent was $499.95 per month effective June
1, 1981 and further determined that the tenants had been
overcharged in the amount of $2598.00 through May 31, 1983 and
directed the owner to refund such overcharge to the tenants. In
determining the amount of the rent overcharge, no assignment
allowance was permitted for the assignment to Ms. Green and no
vacancy allowance was permitted when Ms. Green renewed her lease.
In this petition, the owner alleges in substance that upon
the initial occupancy by Mr. Weissman, it was entitled to an 11.5%
rent increase (6 1/2% + 5% vacancy allowance) for a two year
vacancy lease pursuant to Guideline 10, but took only a 10.5% rent
increase so that it is entitled to an additional 1% rent increase;
that although the owner was not entitled to a 5% allowance when
the Weissman lease was assigned to Ms. Green, it was entitled to a
5% vacancy allowance when Ms. Green signed the November 1, 1980
lease in her own name and the waiver of this vacancy allowance by
the owner corrected the owner's prior mistake in taking an
assignment allowance so that no overcharge in fact occurred.
The Commissioner is of the opinion that this petition should
be denied.
Regarding the owner's contention that it is now entitled to
an additional 1% rent increase which it failed to charge tenant
Weissman during the Guideline 10 period, it is noted that where
the actual rent charged is less than the rent with the maximum
permitted increases, the lawful stabilization rent is limited to
the rent charged and cannot be subsequently increased.
Regarding the owner's contention that it was entitled to
charge a vacancy allowance when Ms. Green first signed a lease in
her own name effective November 1, 1980, it is noted that
effective February 1, 1979, the Weissman lease was assigned to Ms.
Green and any subsequent lease signed by Ms. Green is considered a
renewal lease and not a vacancy lease so that no vacancy allowance
was warranted when Ms. Green renewed the lease effective November
1, 1980. Further, the Weissman lease which was assigned to Ms.
Green was a vacancy lease so that the owner obtained a vacancy
allowance upon the renting to Mr. Weissman effective November 1,
1978 and was not entitled to a second vacancy allowance when the
Weissman lease was assigned to Ms. Green. Accordingly, the Rent
Administrator's order finding a rent overcharge was warranted.
BH 410091 RO
Because this determination concerns lawful rents only through
May 31, 1983, the owner is cautioned to adjust subsequent rents
to an amount no greater than that determined by the Rent
Administrator's order plus any lawful increases, and to register
any adjusted rents with this order and opinion being given as the
explanation for the adjustment.
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.
A copy of this order is being sent to the tenant now in
occupancy at the subject apartment since the owner indicated in
its petition that the tenants herein have now vacated the subject
apartment.
THEREFORE, in accordance with the provisions of the Rent
Stabilization Law and Code, it is
ORDERED, that this petition for administrative review be, and
the same hereby is, denied, and, that the order of the Rent
Administrator be, and the same hereby is, affirmed.
ISSUED
JOSEPH A. D'AGOSTA
Deputy Commissioner
BH 410091 RO
|
