BH 410305 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 410305 RO
: DISTRICT RENT OFFICE
DOCKET NO. TC 077353 G
Taube Management Co., CDR 30,778
TENANT: Lyn Evans
PETITIONER :
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On August 4, 1987, the above-named petitioner-owner filed a Petition for
Administrative Review against an order issued on July 3, 1987, by the
Rent Administrator, 10 Columbus Circle, New York, New York, concerning
the housing accommodations known as 100 Sullivan Street, New York,
New York, Apartment No. 3F, 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. Section 2526.1(a)(4) and 2521.1(d) of the Rent Stabilization Code
(effective May 1, 1987) governing rent overcharge and fair market rent
proceeding 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 of a rent
overcharge complaint by the tenant in October 1983. The owner was
served with a copy of the tenant's complaint and submitted a complete
rental history as required.
In Order Number CDR 30,778, the Rent Administrator established the
lawful stabilized rent as $576.14 effective November 1, 1985, determined
that the tenant had been overcharged and directed a refund to the tenant
of $4,971.20 including interest on overcharges collected on and after
April 1, 1984.
BH 410305 RO
In this petition, the owner contends in substance that Taube Management
is the agent for the Partnership of Miklos Taube and Morris A. Paley;
and that the Rent Administrator's order did not consider that the rent
charged the prior tenant (K. Ross) was a preferential rent based on the
tenant's familiar relationship with co-partner, Morris A. Paley.
A review of the apartment registrations on file with DHCR indicates that
the tenant vacated the subject apartment prior to March 1992 and no
forwarding address is on file.
The Commissioner is of the opinion that this petition should be denied.
An examination of the record in this case discloses that the owner
submitted rent ledgers for the subject apartment from May 1, 1974
through October 31, 1982 which indicated that the prior tenant Kenny
Ross paid the following rents during his tenancy:
8/1/76 - 7/31/78 = $378.55
8/1/78 - 7/31/79 = $391.80
8/1/79 - 7/31/81 = $425.10
8/1/81 - 7/31/82 = $523.76
8/1/82 - 10/31/82 = $550.00
Although a notation hand-written on the rent ledger indicates that the
rent from August 1, 1980 through July 31, 1981 was $471.86, the owner
only collected $425.10 for that term.
The Rent Administrator correctly cited in the order and applied the
principle established in Collingwood Enterprises v. Gribetz (N.Y.L.J.
April 24, 1975 p.17 col. 6 (Sup. NY O. Fine J) that the increases
permitted by the Rent Stabilization Law are maximum rents and the owner
is not prohibited from collecting less than the maximum rent. In
addition, where the owner failed to charge the maximum permitted rent
increase that increase may not be reflected in the Base rent when
computing the subsequent rents.
An examination of the records in this case discloses that in the
proceeding before the Rent Administrator, the owner did not raise the
issue of the relationship of the prior tenant and co-owner nor that the
prior rent was preferential although afforded an opportunity to do so
and has not submitted a reasonable excuse for its failure to do so.
Since this is not a de novo proceeding the owner's contention that there
was no overcharge to the tenant because the prior tenant's rent was
preferential cannot be considered for the first time on appeal.
Accordingly, the Rent Administrator's order was warranted.
Because this determination concerns lawful rents only through June 30,
1987, 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 in the same manner as a judgment.
BH 410305 RO
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. A copy of this order is being served on
the current occupant of the subject apartment.
ISSUED:
JOSEPH A. D'AGOSTA
Acting Deputy Commissioner
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