BH 610124 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 610124 RO
: DRO DOCKET NO.B-3100760-R/T
RAFAEL V. ROMAN TENANT: JOSE RAMIREZ
PETITIONER :
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ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW IN PART
On August 14, 1987, the above-named petitioner-owner filed a
Petition for Administrative Review against an order issued on July
23, 1987, by the Rent Administrator, 10 Columbus Circle, New York,
New York, concerning the housing accommodations known as 1535
Westchester Avenue, Bronx, New York, Apartment No. 5A, 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
and Section 2526.1(f) 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
March 1984 of a rent overcharge complaint by the tenant who first
moved to the subject apartment on March 1, 1977 at a rental of
$210.00 per month.
The owner was served with a copy of the complaint and was
directed to submit a complete rental history for the subject
apartment from the base date including copies of all leases. In
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response the owner stated that the exact rental history was
unknown and only submitted copies of leases from January 1, 1981.
In addition, the owner stated that it first purchased the subject
premises in February 1982, and that the City of New York has had
control of the subject premises since February 1985 pending
payment of past due taxes. The owner also submitted a 1972-73
Maximum Base Rent Order which did not list the subject apartment
and stated that such form shows that the subject apartment had
been decontrolled prior to 1972.
In Order Number CDR 40,007, 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 $1569.28
from March 1, 1977 through July 31, 1987, determined the lawful
stabilization rent was $274.65 effective June 1, 1986, and
directed the owner to refund the overcharge to the tenant.
In this petition, the owner contends in substance that he
provided all the rental history he had, that the order requires a
credit to be issued for periods prior to February 1982 when the
owner herein first purchased the subject premises, that the order
does not take into account the amount of $1230.00 not paid by the
tenant from July 1981 to December 1981 assigned to the current
owner by the prior owner, that from November 1984 through
September 1985 the tenant was required to pay rent to New York
City and that the purchase agreement shows no security for the
subject apartment.
In response to the owner's petition, the tenant stated in
substance that he did pay the $1230.00 claimed not to be paid by
the owner and that he did pay a security deposit.
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 effect from June 30, 1974 to date and produce them to
the DHCR upon demand. If the apartment was decontrolled from the
Rent Control Law after June 30, 1974, the owner must provide
satisfactory documentary evidence of the apartment's date of
decontrol.
In the instant case, the owner has not provided a complete
rental history as mandated by Section 42A. The owner has
submitted a rental history only from 1981. Accordingly, the Rent
Administrator correctly established the lawful stabilization rent
utilizing the Section 42A default procedure. However the evidence
of record including copies of leases discloses that the owner is
correct in his contention that he did not acquire the subject
premises until February 1982. Section 2526.1(f) of the current
Rent Stabilization Code provides in pertinent part that for
overcharges collected prior to April 1, 1984, an owner will be
held responsible only for his or her portion of the overcharges in
the absence of collusion or any relationship between such owner
and any prior owner. In this case, there is no evidence of any
BH 610124 RO
collusion between the current owner and any prior owner.
Therefore the Rent Administrator's order is modified to show that
the current owner is only responsible for overcharges occurring
since February 1982 including excess security and interest on that
portion of the overcharge occurring on and after April 1, 1984 - a
total of $696.84.
It is noted that the prior owner was not named by the tenant
and not made a party to this proceeding. This order is issued
without prejudice to any action the tenant may have against the
prior owner in a court of competent jurisdiction.
With regard to the owner's contentions about the tenant owing
$1230.00 in back rent to a prior owner which was credited to the
current owner, and that the tenant did not pay any security, it is
noted that such contentions may not properly be considered herein
because they were raised for the first time on appeal and this is
not a de novo proceeding. Moreover, the owner has submitted no
evidence in support of these contentions.
With regard to the owner's contention that the tenant paid
rent to New York City from November 1984 through September 1985,
it is noted that in the proceeding before the Rent Administrator,
the owner contended that New York City was in control of the
subject premises beginning in February 1985. The owner has thus
made inconsistent allegations regarding this issue and moreover
has submitted no evidence in support thereof. Accordingly, the
Rent Administrator correctly did not consider such alleged control
of the subject premises by New York City in the order appealed
herein.
Because this determination concerns lawful rents only
through July 31, 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.
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, not in excess of twenty percent per month
of the overcharge may be offset against any rent thereafter due
the owner.
If the owner has already complied with the Rent
Administrator's order and there are arrears due to the owner as a
result of the instant determination, the tenant shall be permitted
to pay off the arrears in twelve equal monthly installments.
Should the tenant vacate after the issuance of this order, or have
already vacated said arrears shall be payable immediately.
THEREFORE, in accordance with the provisions of the Rent
Stabilization Law and Code, it is
ORDERED, that this petition for administrative review be, and
BH 610124 RO
the same hereby is, granted in part, and, that the order of the
Rent Administrator be, and the same hereby is, modified to show
that the owner herein is responsible for refunding a total
overcharge of $696.84 (amount of overcharge from February 1, 1982
through July 31, 1987). In all other respects, the Rent
Administrator's order is affirmed.
ISSUED
JOSEPH A. D'AGOSTA
Deputy Commissioner
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