BH 410294 RO
STATE OF NEW YORK
DIVISION OF HOUSING AND COMMUNITY RENEWAL
OFFICE OF RENT ADMINISTRATION
92-31 UNION HALL STREET
JAMAICA, NEW YORK 11433
----------------------------------X S.J.R. 6170
IN THE MATTER OF THE ADMINISTRATIVE ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.: BH 410294 RO
DRO DOCKET NO.: TC 083062 G
TENANT: DAVID AND DIANE NELSON
ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
On August 17, 1987 the above-named petitioner-owner filed a
Petition for Administrative Review against an order issued on July
14, 1987 by the Rent Administrator, 10 Columbus Circle, New York,
New York, concerning housing accommodations known as Apartment 6 at
5 Jones Street, New York, New York, wherein the Rent Administrator
determined that the owner had overcharged the tenant. On November
7, 1991, the Commissioner granted the owner's petition in part.
Subsequent thereto, the petitioner owner filed a petition in the
Supreme Court pursuant to Article 78 of the Civil Practice Law and
Rules requesting that the Commissioner's order be annulled. The
proceeding was then remitted to the Division for reconsideration.
The Commissioner notes that this proceeding was initiated 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 issue in this appeal is whether the Rent Administrator's order
The applicable section of the Law is Section 2526.1 of the current
Rent Stabilization Code.
The Commissioner has reviewed all of the evidence in the record and
has carefully considered that portion of the record relevant to the
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issues raised by the administrative appeal.
This proceeding was originally commenced by the filing in February
1984 of a rent overcharge complaint by the tenants who stated that
they first moved to the subject apartment on August 9, 1978 at a
rental of $295.00 per month.
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 response the owner submitted a complete rental history
as required. Subsequently the tenants advised that they had moved
from the subject apartment.
In Order Number CDR 30,868, the District Rent Administrator
determined that the tenant had been overcharged in the amount of
$11,514.31 including excess security and interest on that part of
the overcharge occurring on and after April 1, 1984 and directed
the owner to refund such overcharge to the tenant.
In this petition, the owner alleges in substance that although
there were three vacancies during the Guideline 8 period, it was
only credited with one vacancy allowance rather than three and that
the fuel adjustment allowances under Guideline 10b and 10c were
In its Article 78 Petition, the owner stated the vacancy allowance
attributable to the Sanjurjo tenancy (January 1, 1977 to December
31, 1979) should not have been allowed since Sanjurjo in fact
occupied a different apartment but that the owner should have been
allowed a 5% vacancy allowance commencing February 1, 1978 during
the Randazzo tenancy (2 year vacancy lease commencing May 1, 1977)
due to the occupancy of a new co-tenant Goldberg.
The Commissioner is of the opinion that this petition should be
granted in part.
An examination of the records in this case discloses that the owner
is correct in its contention that the fuel adjustment allowances
under Guideline 10b and 10c were incorrectly calculated in that the
owner was not credited with the 2% temporary surcharge to which it
was entitled but only credited with the $12.00 temporary fuel
surcharge and such $12.00 was allowable for an incorrect time
period from March 1, 1979 to August 1, 1979 rather than from
January 1, 1980 to July 1, 1980. Further the owner is entitled to
two vacancy allowances during the Guideline 8 period-one for the
Holbrick tenancy and one for the Randazzo-Lefkowitz tenancy. The
owner is correct in its contention that the Sanjurjo lease should
not have been included in the original rent calculation chart since
Mr. Sanjurjo occupied another apartment in the subject premises
although it is noted that it was the owner itself who first
presented said Sanjurjo lease as part of the rental history both in
the proceeding before the Rent Administrator and at the PAR level.
BH 410294 RO
In addition the use of the Sanjurjo tenancy did not affect the
subsequent rent of the subject apartment because said tenancy
commenced on January 1, 1977, was within three months of the
Halbrich tenancy and was within the same guideline period. In any
event, the Sanjurjo tenancy has now been deleted from the rent
With regard to the owner's contention, raised for the first time in
its Article 78 petition, that it is entitled to a 5% rent increase
effective February 1, 1978 for amending the Randazzo-Lefkowitz two
year vacancy lease commencing May 1, 1977, the Commissioner is of
the opinion that such contention is without merit. It is noted
that the owner submitted a statement dated February 23, 1978 to the
effect that Ben Randazzo and Monte Goldberg had agreed to pay a 5%
increase in rent as of February 1978 amending original lease.
Randazzo and Goldberg then vacated the subject apartment by August
1978. In order to obtain a 5% vacancy increase effective as part
of the base rent for future leases, the owner would have had to
issue a new lease in the name of both Randazzo and Goldberg and
void the prior lease-an action not taken by the owner in this case.
It is further noted that CAB Opinion Number 23,048 referred to by
the owner in its Article 78 petition does not support the owner's
contention herein since such opinion dealt with a situation where
a tenant's initial lease had expired and it was determined that the
subsequent lease would be a vacancy lease rather than a renewal
lease because a co-tenant was added to the subsequent lease. In
the instant proceeding, no new lease was issued in the name of
Randazzo and Goldberg.
Taking the aforementioned factors into account, the Commissioner
has recalculated the lawful stabilization rents and amount of the
rent overcharge for the subject apartment. The lawful
stabilization rents and amount of the rent overcharge are set forth
on the amended rent calculation chart attached hereto and made a
Because this determination concerns lawful rents only through the
date of February 28, 1987 used in the Administrator's order being
appealed, 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.
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 copy of this order is being sent to the tenant now in occupancy
at the subject apartment.
THEREFORE, in accordance with the Rent Stabilization Law and Code,
BH 410294 RO
ORDERED, that this petition be, and the same hereby is, granted in
part, that the Rent Administrator's order be, and the same hereby
is, modified in accordance with this Order and Opinion and that the
Commissioner's prior Order and Opinion issued on November 7, 1991
be, and the same hereby is, affirmed as modified herein. The
lawful stabilization rents and amount of rent overcharge are
established on the attached chart which is fully made a part of
this order. The amount of the rent overcharge through February 28,
1987 is $10,169.30.
JOSEPH A. D'AGOSTA
Acting Deputy Commissioner