ADM. REVIEW DOCKET NO. BK 410277 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 410277 RO
: DRO DOCKET NO. CDR 31,505
MILFORD MANAGEMENT CORP. -
OWNER Tenant: REESE ABRIGHT
PETITIONER :
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ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
IN PART
The above-named petitioner timely filed a Petition for
Administrative Review against an order issued on October 6, 1987
by the Rent Administrator, 10 Columbus Circle, New York, New York
concerning the housing accommodation known as 20 West 64th Street,
Apartment 18N, New York, New York wherein the owner was directed
to roll back the rent and to refund overcharges of $6,689.19,
including excess security and interest on the overcharges
collected on or after April 1, 1984.
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, any reference in this order and opinion to
Sections of the Rent Stabilization Code is to the Code in effect
on April 30, 1987, and this proceeding is being determined in
accordance therewith.
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 petition for review.
This proceeding was commenced when the subject tenant filed a
complaint of rent overcharge with the New York City Conciliation
and Appeals Board (CAB), the agency formerly charged with
enforcement of the Rent Stabilization Law. On April 1, 1984
responsibility for the administration of rent stabilization in New
York City was transferred to the New York State Division of
Housing and Community Renewal.
On August 19, 1985, the DHCR served a copy of the complaint
upon the owner and demanded that the owner submit copies of all
leases in effect since the apartment's base date, i.e., the date
that the apartment became subject to rent stabilization.
ADM. REVIEW DOCKET NO. BK 410277 RO
The owner submitted a set of leases from December 1, 1972
through July 31, 1987.
In the order here under review, the Administrator determined
that an overcharge had occurred and directed the owner to roll
back the rent and to refund $6,689.19 inclusive of excess security
and interest on the overcharge occurring on or after April 1,
1984.
In its appeal, the owner requests that the Administrator's
order be modified to accurately reflect the owner's actions in
rolling back the rent to $792.93 and issuing a rent credit of
$4703.94 on February 1, 1985. Based upon these actions, the owner
contends that only $462.60 in overcharges is outstanding.
Submitted with the appeal are computer generated account sheets
showing the amount credited to the tenant's rent account.
The tenant raises three issues in answer to the appeal.
First, the tenant claims that the petition is dated January 14,
1988 and is therefore untimely. The tenant's second allegation
concerns the amount of the overcharge. The tenant contends that
the Administrator correctly calculated the overcharges. The
tenant agrees that the owner issued a credit but disputes its
value, alleging that since the lawful rent was $775.98, the rent
credit was worth only $4655.88. (6 mos. x $775.98). The tenant
calculates the refund for overcharges at $2014.84. Finally, the
tenant claims that the rent being collected for the lease term of
August 1, 1987 through July 31, 1989 is an overcharge and requests
an adjustment in the overcharges to be refunded to reflect
interest and the additional overcharge.
The Commissioner is of the opinion that this petition should
be granted in part.
The Commissioner notes that the petition is incorrectly dated
October 6, 1987, the date of the Administrator's order. Review of
DHCR records discloses that this appeal was timely filed in
November 1987. The date to which the tenant alludes is the date
on which the DHCR sent Notice of Filing of Petition For
Administrative Review to the tenant.
The Commissioner also notes that the owner did not apprise
the Administrator of its attempt to refund overcharges prior to
the issuance of the order.
Accordingly, based on the evidence available at the time, the
order was correct as written. However, since the parties are in
agreement that an adjustment was made in February 1985, the
Commissioner has recomputed the overcharges still owing to the
tenant. As recalculated below, the overcharges collected through
July 31, 1987, the computation date of the Administrator's order,
equals $1312.57. Given that the evidence submitted in the appeal
proceeding indicates that the rent credit issued on February 1,
1985 was used as rent for February through July, 1985, the
Commissioner has credited the tenant with $4655.88, six times
the lawful rent, rather than the amount used by the owner in its
ADM. REVIEW DOCKET NO. BK 410277 RO
calculations. Since no rent above the rent credit was collected
during this period, the Commissioner finds no overcharges were
collected from February 1, 1985 through July 31, 1985.
8/1/79 - 7/31/80 = $81.05 x 12 mos. = $ 972.60
8/1/80 - 7/31/82 = $73.05 x 24 mos. = 1753.20
8/1/82 - 3/31/84 = $94.02 x 19 mos. = 1786.38
4/1/84 - 1/31/85 = $94.02 x 10 mos. + interest = 972.57
8/1/85 - 7/31/87 = $18.47 x 24 mos. + interest = 483.70
Total overcharges $5968.45
Less rent credit 2/1/85 - 7/31/85
$775.98 x 6 = ($4655.88)
Net overcharge $1312.57
The order here under review concerned overcharges only
through July 31, 1987. Consequently, the tenant's allegation
concerning the August 1, 1987 through July 31, 1989 lease is
beyond the scope of this review.
However, the owner is reminded to adjust all future rent to
conform with the lawful stabilization rent, $845.82, for the lease
period August 1, 1985 through July 31, 1987, as determined by the
Administrator.
Therefore, the Commissioner finds that the Administrator's
order should be modified and directs the owner to refund
overcharges of $1312.57.
This order may, upon the expiration of the period in which
the owner may institute a proceeding pursuant to Artic e seventy-
eight of the Civil Practice Law and Rules, be filed and enforced
by the tenant in the same manner as a judgment or by offsetting
the overcharge found herein against any rent thereafter due the
owner not in excess of twenty percent thereof per month.
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 the Rent Administrator's order be, and the
same hereby is, modified in accordance with this order and
opinion.
ISSUED:
ELLIOT SANDER
Deputy Commissioner
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