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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. BI 410118 RO
: DRO DOCKET NO.T/C-080193-G
316 REALTY CO. TENANTS: MAREK AND YESSMAN
PETITIONER :
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On September 18, 1987, the above-named petitioner-owner filed
a Petition for Administrative Review against an order issued on
August 13, 1987, by the Rent Administrator, 10 Columbus Circle, New
York, New York, concerning the housing accommodations known as 316
West 94th Street, New York, New York, Apartment No. 1C, wherein the
Rent Administrator determined that the tenants had
been overcharged.
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 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 in February, 1984,
by the filing of a rent overcharge complaint by the tenants who
took occupancy pursuant to a lease commencing April 1, 1983 at a
monthly rent of $620.00. In answer to the tenants' complaint, the
owner submitted a complete rental history as required.
In Order Number CDR 31,076, the Rent Administrator determined
that the tenants had been overcharged in the amount of $15,375.47
including interest on the amount of the overcharge occurring on
and after April 1, 1984 and directed the owner to refund the
BI 410118 RO
overcharge to the tenants.
In this petition, the owner contends in substance that the
Rent Administrator's order is incorrect and should be modified
because there was no overcharge during the period from June 15,
1983 to August 31, 1983 because the tenants were subletting the
subject apartment during this period and received the rent money
from the subtenant and that the monthly lawful stabilization rents
were incorrectly set at $402.48 effective April 1, 1984, and
$428.64 effective April 1, 1986, rather than at $406.28 effective
April 1, 1984, and $432.69 effective April 1, 1986.
The Commissioner is of the opinion that this petition should
be denied.
With regard to the owner's contention that no overcharge
should have been found during the period of subletting, it is
noted that although the tenants received $650.00 per month from
the subtenant during such period, they also paid $650.00 per month
to the owner. Accordingly the owner was still collecting a rent
overcharge during the period of the subletting and must refund
such overcharge to the tenants. The tenants should then refund
this portion of the overcharge to the subtenant. It is noted
however that the owner is under no obligation to refund any
overcharge to the subtenant.
With regard to the owner's contention that the April 1, 1984
monthly lawful stabilization rent should have been set at $406.28
and that the April 1, 1986 monthly lawful stabilization rent
should have been set at $432.69, it is noted that the March 31,
1984 monthly lawful stabilization rent was $379.70 and that the
owner was then entitled to a 6% increase pursuant to Guideline 15
(7% minus 1% electrical inclusion) for a two year renewal lease
thus making the April 1, 1984 monthly lawful stabilization rent
$402.48 as determined by the Rent Administrator. Unfortunately,
the Rent Administrator incorrectly listed this rent increase as 7%
rather than the 6% actually used to determine the increase.
Accordingly, the Rent Administrator's order is hereby modified to
show a 6% Guideline 15 increase rather than the 7% listed. In
addition, the April 1, 1986 monthly lawful stabilization rent was
correctly listed by the Rent Administrator as $428.64 - the March
31, 1986 monthly lawful stabilization rent of $402.48 increased by
6 1/2% pursuant to Guideline 17 for a two year renewal lease.
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.
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
or not in excess of twenty percent per month of the overcharge may
be offset against any rent thereafter due the owner.
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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 as modified in
accordance with this order and opinion. The total amount of the
rent overcharge through July 31, 1987 is $15,375.47.
ISSUED
ELLIOT SANDER
Deputy Commissioner
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