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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 410166 RO
M. J. RAYNES INC., DISTRICT RENT OFFICE
DRO DOCKET NO.: U-3124380 R
TENANT: MADELINE SHIKAR
PETITIONER
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On September 24, 1987 the above-named petitioner-owner filed a
Petition for Administrative Review against an order issued on
August 14, 1986, by the Rent Administrator, 10 Columbus Circle,
New York, New York, concerning the housing accommodations known
as 200 East End Avenue, New York, New York, Apartment No. 8E,
wherein the Rent Administrator determined that the owner had
overcharged the tenant.
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 Administrative Appeal is being determined pursuant to the
provisions of Section 42A of the former 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 issues raised by the administrative appeal.
This proceeding was originally commenced by the filing in March
31, 1984 of a rent overcharge complaint by the tenant.
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In response to the tenant's complaint, the owner submitted a
rental history from May 1, 1977 through April 30, 1986 and
requested by its attorney an extension of time in which to submit
a complete answer.
In Order Number CDR 21,136, 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 $10,674.16
including interest on that portion of the overcharge occurring on
and after April 1, 1984.
In this petition the owner contends in substance that the order
was mailed to its former address, an address not in use for at
least three years. Moreover, despite the appearance of the
owner's attorneys, no copy of the order was mailed to them.
In answer to the owner's petition, the tenant states in substance
that the owner has never submitted a complete rental history; the
Administrator's order is correct and should be upheld.
The Commissioner is of the opinion that this petition should be
denied.
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 to 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 and submit a rental history from that date.
In the instant case, the owner has not provided a complete rental
history as mandated by Section 42A.
The owner's contentions regarding the mailing mishaps of the
order, which, confirmed by the Division's records, permit
acceptance of an appeal filed more than 35 days after the
issuance of the order, did not justify the persistent failure by
the owner to submit a complete rental history. The Commissioner
notes that the owner was first notified on April 4, 1984 of the
complaint and of the requirement to submit base date rent records
and was further notified on April 30, 1986 of pending default.
Yet even in this appeal, the owner has failed to produce the
required documents.
With regard to the owner's supplemental assertion regarding the
applicability for the decision in J.R.D. Mgt. v. Eimicke, 148
A.D.2d 610, 539 N.Y.S.2d 667 (App. Div. 2d Dep't 1989), 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,
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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), to the instant case the
Commissioner notes that subsequent to 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 Dept. 1989) 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, the DHCR must follow the Lavanant decision
in determining the overcharge complaint. Therefore, the
Commissioner finds that the JRD decision inapplicable to the
issues raised in this appeal.
Accordingly, the Rent Administrator's order establishing the
lawful stabilization rent utilizing the Section 42A default
procedure and finding a rent overcharge was warranted.
Because this determination concerns lawful rents only through
April 30, 1986, 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 judgement or not in excess of twenty percent per
month thereof may be offset against any rent thereafter due the
owner.
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.
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ISSUED:
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JOSEPH A. D'AGOSTA
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Acting Deputy Commissioner
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