BI 410288 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 410288 RO
: DRO DOCKET NO.L-3115753-R
PIETRO MARTIRE TENANT: SUSAN RIBNER
PETITIONER :
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On September 14, 1987, the above-named petitioner-owner filed
a Petition for Administrative Review against an order issued on
August 12, 1987, by the Rent Administrator, 10 Columbus Circle, New
York, New York, concerning the housing accommodations known as 317
West 100th Street, New York, New York, Apartment No. 3F, wherein the
Rent Administrator determined that the tenant 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 by the filing of a
rent overcharge complaint by the tenant in March 1984. The tenant
took occupancy pursuant to a lease commencing June 1, 1977 and
expiring May 31, 1979 at a monthly rent of $230.00. The owner was
served with a copy of the tenant's complaint and submitted a
complete rental history as required.
In Order Number CDR 31,032, the Rent Administrator
established the lawful stabilized rent as $286.59 effective June
1, 1981, determined that the tenant had been overcharged and
BI 410288 RO
directed a refund of $200.21, including interest on overcharges
collected after April 1, 1984, to the tenant.
In this petition, the owner contends in substance that there
was no rent overcharge in that the Rent Administrator failed to
credit it with a 2% fuel surcharge effective June 1, 1979.
The Commissioner is of the opinion that this petition should
be denied.
An examination of the Rent Administrator's order discloses
that the owner was credited with the 2% fuel surcharge in the
lease effective June 1, 1979. The owner is advised that this
credit of the fuel surcharge is explained on page 4 of the rent
calculation chart under the column entitled " Sum of Temporary
Adjustments Pre 4/1/84". However, it is noted that the 2% fuel
surcharge was temporary in nature and could only be collected
during the lease period from June 1, 1979 to May 31, 1981 and was
not part of the base rent for purposes of calculating future
guideline increases. It is further noted that the overcharge
found by the Rent Administrator resulted from the owner's
continuing to charge the temporary 2% fuel surcharge in the next
lease commencing on June 1, 1981 which is prohibited as explained
above. Accordingly, the Rent Administrator's order was warranted.
Because this determination concerns lawful rents only through
May 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.
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.
ISSUED
ELLIOT SANDER
Deputy Commissioner
BI 410288 RO
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