BK 210014 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.: BK 210014 RO
2 WEST END REALTY COMPANY,
D.R.O. DOCKET NO.: T/C 079779 G
PETITIONER
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ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
On November 13, 1987, the above named petitioner-owner filed a
Petition for Administrative Review against an order issued on
October 9, 1987, by the District Rent Administrator, 10 Columbus
Circle, New York, New York, concerning housing accommodations
known as Apartment 2G, 2 West End Avenue, Brooklyn New York,
wherein the District Rent Administrator determined that the
owner had overcharged the tenant.
The issue in this appeal is whether the District Rent
Administrator's order was warranted.
The applicable section of the law is Section 26-516 of the Rent
Stabilization Law.
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 commenced on October 16, 1983 by the tenant's
filing of a rent overcharge complaint. Along with her complaint,
the tenant submitted copies of her leases from August 1, 1978
through July 31, 1986.
In Order Number CDR 31,556 issued October 9, 1987, the District
Rent Administrator determined that the owner had failed to
provide a full rental history for the subject apartment from the
base rent date, and accordingly established the lawful stabilized
rent as $244.90 (the last rent paid by the prior tenant). The
Administrator further determined that the tenant had been
overcharged since August 1, 1978, and therefore directed the
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owner to refund to the tenant $4,153.19 which included excess
security and interest on that portion of the overcharge occurring
on or after April 1, 1980.
In this petition, the owner contends, inter alia, that the
District Rent Administrator's order is incorrect and should be
revoked because a full rental history was submitted from April 1,
1980, the base rent date for the subject apartment pursuant to
the Court's holding in J.R.D. Management Corp. v. Eimicke.
In response, the tenant contends in substance that the
Administrator's order should be affirmed.
The Commissioner is of the opinion that this petition should be
granted.
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
subject 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 4 years prior to the most
recent registration, and concomitantly, established a 4 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 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).
However, it has recently been held in the case of J.R.D. Mgt. v.
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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, 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.
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 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.
A review of the record in the instant case indicates that a
complete rental history for the subject apartment from August 1,
1978 (the commencement date of the complaining tenant's initial
lease) was submitted to the Administrator by the tenant when she
filed her complaint. Accordingly, it was incorrect for the
Administrator to default the owner for failing to submit a full
rental history.
Based on the foregoing, the Commissioner has recalculated the
lawful stabilization rents on the amended rent calculation chart
attached hereto and made a part hereof. As shown on the chart,
the tenant has not been overcharged.
If the owner has already complied with the Rent Administrator's
order and there are arrears due to the owner as a result of the
instant determination, the tenant shall be permitted to pay off
the arrears in twenty-four equal monthly installments. Should
the tenant vacate after the issuance of this order or have
already vacated, said arrears shall be payable immediately.
THEREFORE, in accordance with the Rent Stabilization Law and
Code, it is
ORDERED, that this petition be, and the same hereby is, granted
and that the District Rent Administrator's order be, and the same
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hereby is, revoked.
The lawful stabilization rents are established on the attached
chart which is fully made a part of this order.
ISSUED:
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JOSEPH A. D'AGOSTA
Deputy Commissioner
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