BI 410159 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.: BI 410159 RO
SOLIL MANAGEMENT CORPORATION,
D.R.O DOCKET NO.: L 3113753 RT
PETITIONER
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ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
IN PART
AND
MODIFYING ADMINISTRATOR'S ORDER
On September 16, 1987 the above-named petitioner-owner filed a
Petition for Administrative Review of an order issued on
September 9, 1987, by the District Rent Administrator, 10
Columbus Circle, New York, New York, concerning housing
accommodations known as Apartment 1F, 160 West 73rd Street, New
York, New York, 10023 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 on March 31, 1984 by the
filing of a rent overcharge complaint by the tenant with the New
York City Conciliation and Appeals Board, one of the predecessor
agencies to the Division of Housing and Community Renewal (DHCR).
The tenant's base date lease commenced September 5, 1967 and
expired September 4, 1970 at a monthly rent of $155.00. By
subsequent correspondence, the tenant listed a complete rental
history from the base date.
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 submitted a rental
BI 410159 RO
history chart for the subject apartment from June 30, 1974.
In Order Number L-3113753-RT, CDR 31,348, the District Rent
Administrator determined the lawful stabilized rent from the May
31, 1968 base date, determined that the owner had collected an
overcharge from the tenant in the amount of $13,994.82, and
directed the refund of such amount to the tenant. The
Administrator further found that the owner has not registered the
rents and services of the subject building.
In this petition, the owner contends that the District Rent
Administrator's Order is incorrect and should be modified
because the owner has registered the rents and services of the
subject building and, pursuant to the Omnibus Housing Act of
1983 the base date for the subject apartment should be April 1,
1980, and that if such base date is used there is no overcharge.
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 the appropriate base date (even if such date was
prior to April 1, 1980) to date and to produce such records to
the DHCR upon demand.
Section 26-516 of Rent Stabilization Law, effective April 1,
1984, limited an owner's obligation to provide rent records by
providing that an owner may not be required to maintain or
produce rent records for more than 4 years prior to the most
recent registration, and concomitantly, establishes a 4 year
limitation on the calculation of rent overcharges. This is
apparently what petitioner refers to when it contends that 1980
should be the base date.
It has been the DHCR's policy that overcharge complaints filed
prior to April 1, 1984 are to be processed pursuant to the law or
Code in effect on March 31, 1984. (See Section 2526.1(a)(4) of
the current Rent Stabilization Code.) The DHCR has therefore
applied Section 42A of the former Code to overcharge complaints
filed prior to April 1, 1984, requiring complete rent records in
these cases. In following this policy, the DHCR has sought to be
consistent with the legislative intent of the Omnibus Housing Act
(Chapter 403, Laws of 1983), as implemented by the New York City
Conciliation and Appeals Board (CAB), the predecessor agency to
the DHCR, to determine rent overcharge complaints filed with the
CAB prior to April 1, 1984 by applying the law in effect at the
time such complaints were filed so as not to deprive such tenants
of their right to have the lawful stabilized rent determined from
the June 30, 1974 base date and so as not to deprive tenants
whose overcharge claims accrued more than 4 years prior to April
1, 1984 of their right to recover such overcharges. In such
cases, if the owner failed to produce the required rent records,
the lawful stabilized rent would be determined pursuant to the
default procedure approved by the Court of Appeals in 61 Jane
Street Associates v. CAB, 65 N.Y.2d 898, 493 N.Y.S.2d 455 (1985).
It has recently been held in the case of J.R.D. Mgt. v. Eimicke,
148 A.D.2d 610, 539 N.Y.S.2d 667 (App. Div. 2d Dep't 1989),
BI 410159 RO
motion for leave to reargue or for leave to appeal to the Court
of Appeals denied (App. Div. 2d Dep't, N.Y.L.J., June 28, 1989,
p.25, col. 1), motion for leave to appeal to the Court of
Appeals denied (Court of Appeals, N.Y.L.J., Nov. 24, 1989, p. 24,
col. 4), motion for leave to reargue denied (Court of Appeals,
N.Y.L.J., Feb 15, 1990, p. 25, col. 1), that the law in effect at
the time of the determination of the administrative complaint
rather than the law in effect at the time of the filing of the
complaint must be applied and that the DHCR could not require an
owner to produce more than 4 years of rent records.
However, since the issuance of the decision in JRD, the Appellate
Division, First Department, in the case of Lavanant v. DHCR, 148
A.D. 2d 185, 544 N.Y.S.2d 331 (App. Div. 1st Dep't 1989), has
issued a decision in direct conflict with the holding in JRD.
The Lavanant court expressly rejected the JRD ruling, finding
that the DHCR may properly require an owner to submit complete
rent records, rather than records for just four years, and that
such requirement is both rational and supported by the law and
legislative history of the Omnibus Housing Act.
Since in the instant case the subject dwelling unit is located in
the First Department, complete rent records rather than records
only from April 1, 1980 were properly required. In this case,
the complaining tenant was in occupancy on May 31, 1968 and the
tenant provided a complete rental history from that date.
Therefore the Commissioner finds that the Administrator properly
calculated the lawful stabilized rent from the base date of May
31, 1968.
The Division's records disclose that the owner has registered the
rents and services of the subject building. Therefore, the
Administrator's finding that the owner had not registered was in
error, and such finding is eliminated from the Administrator's
order.
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 that the District Rent Administrator's order be, and
the same hereby is, modified in accordance with this order and
opinion.
ISSUED:
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ELLIOT SANDER
Deputy Commissioner
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