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.:
JANET SPAFFORD, RENT ADMINISTRATOR'S
GRENADIER REALTY CORP.,
ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
On October 1, 1987 the above-named petitioner-owner filed a Peti
tion for Administrative Review against an order issued on August
31, 1987 by the Rent Administrator, 10 Columbus Circle, New York,
New York, concerning housing accommodations known as Apartment 2
at 74-40 260th Street, Glen Oaks, New York, wherein the Re t Ad-
ministrator determined that the tenant had been overcharged.
The applicable sections of law are Section 26-516 of the Rent
Stabilization Law and Section 2526.1(a) of the Rent Stabilization
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 with the New York Ci y Conci-
liation and Appeals Board, one of the predecessor agencies to the
Division of Housing and Community Renewal (DHCR). The tenant
took occupancy pursuant to a lease commencing January 1, 1980 and
expiring December 31, 1980 at a monthly rent of $345.36.
The owner was served with a copy of the complaint and in response
submitted a rent history from December 1, 1976.
In Order Number CDR 31,270, the Rent Administrator determined
that, due to the owner's failure to submit a complete rental his
tory, the tenant had been overcharged in the amount of $4,915.33
and directed the owner to refund such overcharge to the tenant as
well as to reduce the rent.
In its petition, the petitioner contends that it submitted a full
rental history to the Administrator and that the Administrator
failed to consider the leases from December 1, 1976. The
petitioner also states that DiConza, Larocca & Dicunto are the
owners of the subject premises, and Grenadier Realty Corp. is the
In answer, the tenant asserts that the petition should be denied
based on the owner's failure to submit the required rent records.
The tenant asserts that based on a comparison of the 1978 lease
with the 1976 lease for the prior tenant, the prior tenant's
signature on the 1978 lease was printed, not signed, and that the
tenant believes that the prior tenant never signed the 1978
lease, but vacated the apartment. The tenant stated that she
would submit information to substantiate these allegations, but
the tenant failed to do so.
The Commissioner is of the opinion that this petition should be
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 (or the date the apartment became sub-
ject to rent stabilization, if later) 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 four years prior to the most
recent registration, and concomitantly, established a four year
limitation on the calculation of rent overcharges.
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 four 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
However, it has recently been held in the case of J.R.D. Mgmt. 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, p.25, col.1) motion for leave to appeal to the Court of
Appeals denied (Court of Appeals, N.Y.L.J., Nov. 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 pro-
duce more than four years of rent records.
Since the issuance of the decision in JRD, the Appellate
Division, First Department, in the case of Lavanat v. DHCR, 148
A.D.2d 185, 544 N.Y.S.2d 331 (App. Div. 1st Dept'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 Second Department, the DHCR is constrained to follow the JRD
decision in determining the tenant's overcharge complaint,
limiting the requirement for rent records to April 1, 1980. The
Commissioner finds that the fact that the pri r tenant's signa-
ture on the 1978 lease is printed does not render that lease
invalid and that the tenant has failed to submit any evidence to
substantiate her assertion that the prior tenant had vacated the
apartment and did not sign the 1978 lease. Accordingly, the Com
missioner has examined the rent records for the subject apartment
from December 1, 1976 and has determined that no rent overcharge
occurred. The tenant's rent on April 1, 1980 was $354.36. It was
then increased by lawful guidelines amounts through the tenant's
January 1, 1986 lease. Therefore, the Rent Administrator's order
determining that the tenant had been overcharged must be revoked.
If the owner has already complied with the Administrator's order
and there are arrears due to the owner as a result of the instant
determination, the tenant may pay off the arrears in twenty four
equal monthly installments. Should the tenant vacate after the
issuance of this order, said arrears shall be payable immedi-
The Commissioner notes that for purposes of this proceedings the
managing agent Grenadier Realty Corp. is properly named as the
owner since Section 2520.6(i) of the Rent Stabilization Co e in-
cludes a managing agent in the definition of an owner.
THEREFORE, in accordance with the Appellate Division ruling in
JRD, it is
ORDERED, that this petition be, and the same hereby is granted,
and the order of the Rent Administrator be, and the same hereby
is, revoked and it is found that no rent overcharge occurred.