BI 210215 RO
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.: BI 210215 RO
DRO DOCKET NO.: K 310622 OR
ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
MODIFYING DISTRICT RENT ADMINISTRATOR'S ORDER
On September 24, 1987, the above-named petitioner-owner filed a
Petition for Administrative Review against an order issued on
August 19, 1987, by the District Rent Administrator, 10 Columbus
Circle, New York, New York, concerning housing accommodations
known as Apartment 6A at 3091 Brighton Fifth Street, Brooklyn,
New York wherein the District Rent Administrator determined that
the tenant had been overcharged.
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 Commissioner has reviewed all of the evidence in the record
and has carefully considered that portion of the record relevant
to the issues raised by the administrative appeal.
This proceeding was originally commenced by the filing of an
overcharge complaint form with the New York City Conciliation and
Appeals Board, one of the predecessor agencies to the DHCR. The
tenant took occupancy pursuant to a lease commencing August 1,
1978 and expiring July 31, 1980 at a monthly rent of $325.00.
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 answer, the owner advised that the complainant tenant was the
first tenant to take occupancy after vacancy decontrol. The
BI 210215 RO
owner submitted a copy of a Notice of 1978-79 Maximum Base Rent
and Maximum Collectible Rent Computation (Form N26S) dated May
17, 1978 which listed the prior rent controlled tenant as the
tenant as of that date. The owner also submitted an invoice for
a new stove dated August 28, 1981 and written consent from the
tenant for an increase for this item dated August 19, 1981.
In the order under appeal herein, the Administrator determined
the lawful stabilized rent using the default procedure based on
the owner's failure to submit a complete rent history for the
subject apartment, determined that the tenant had been
overcharged in the amount of $4,494.96 and directed the refund of
such amount to the tenant. The Administrator included an
increase of 1/40th of the cost of the new stove.
In answer to this petition, the owner asserts that the
Administrator had in the record documentary evidence to
substantiate the owner's assertion that the tenant was the first
stabilized tenant after vacancy decontrol; that the tenant was
not overcharged on subsequent leases; and that, inasmuch as the
tenant filed an overcharge complaint and not a fair market rent
appeal, the tenant's complaint should be dismissed. The owner
also asserts that it submitted to the Administrator an invoice
and written consent from the tenant for a new refrigerator, which
evidence was disregarded by the Administrator. The owner submits
this evidence with its petition.
The Commissioner is of the opinion that this petition should be
granted in part.
Section 25A of the Code provides that a fair market rent appeal
application may be filed by the tenant of an apartment which was
subject to rent stabilization or rent control prior to July 1,
1971 and was vacated between January 1, 1974 and June 30, 1974,
both dates inclusive, or of an apartment which was subject to
rent control on June 30, 1974 and vacated thereafter.
The evidence of record indicates that the tenant was the first
stabilized tenant in the subject apartment, but that the tenant
was not advised of this status by rider to his lease or of his
right to challenge his initial rent by a notice of initial legal
regulated rent (DC-2 notice). It is apparent that in filing his
complaint the tenant sought to determine the lawfulness of his
initial stabilized rent. The tenant stated in his complaint that
to the best of his knowledge the previous tenant had lived in the
apartment for a long time and paid much less rent. It is within
the discretion of the Division of Housing and Community Renewal
(DHCR) to treat complaints or applications so as to insure that
the complaints or allegations raised by the complainant or
applicant are addressed despite the use of an incorrect form.
The Commissioner therefore finds the proceeding should be
remanded for processing as a fair market rent appeal.
The record indicates that the owner did not allege installation
of a new refrigerator or submit supporting documentation during
the proceeding before the Administrator. However, the
Commissioner finds that, inasmuch as the proceeding is being
remanded for processing de novo as a fair market rent appeal, the
documentation of this improvement submitted by the owner with its
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petition should be considered by the Administrator on remand.
THEREFORE, in accordance with the Rent Stabilization Law and
Code, it is
ORDERED, that this petition be and the same hereby is granted in
part and the proceeding be and the same hereby is remanded to the
District Rent Administrator for further processing in accordance
with this order and opinion. The automatic stay of so much of
the District Rent Administrator's order as directed a refund is
hereby continued until a new order is issued upon remand.
However, the Administrator's determination as to the rent is not
stayed and shall remain in effect, except for any adjustments
pursuant to lease renewals, until the Administrator issues a new
Order upon remand.