ADM. REVIEW DOCKET NOS. BK 910232 RO and CB 910194 RT
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 NOS.: BK 910232 RO
and CB 910194 RT
DENNIS LINK, PETITIONER-OWNER : D.R.O. DOCKET NO.: 052866
JILL BLEEMER AND SETH WEITZMAN,
PETITIONER-TENANTS :
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ORDER AND OPINION DENYING PETITIONER-OWNER'S PETITION FOR
ADMINISTRATIVE REVIEW, GRANTING PETITIONER-TENANTS' PETITION
FOR ADMINISTRATIVE REVIEW IN PART, AND MODIFYING
ADMINISTRATOR'S ORDER
The above-named petitioner-owner and the above named
petitioner-tenants timely filed Petitions for Administrative
Review against an order issued on October 19, 1987, by the Rent
Administrator at 10 Columbus Circle, New York, New York,
concerning housing accommodations known as Apartment No. 3B at 37
Hamilton pLace, Tarrytown, New York, wherein the Administrator
established the stabilized rent and directed the owner to refund
$10,988.35, including interest from April 1, 1984.
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 in the administrative appeal.
This proceeding was originally commenced on November 1, 1984,
by the filing of an objection to the initial registered rent
wherein the tenants alleged that said rent constituted an
overcharge and that they did not have a written lease.
After being sent several notices to submit a rental history
from April 1, 1980, the owner responded, in a letter dated May 20,
1987, as follows:
1. The owner enclosed a copy of the tenants' lease
for the term commencing June 1, 1986 to May 31, 1987
ADM. REVIEW DOCKET NOS. BK 910232 RO and CB 910194 RT
which provided for a monthly rental of $575.00 and
the lease renewal form relating to a June 1, 1987 to
May 31, 1988 term at a monthly rental of $592.25. The
owner stated that it had no prior leases for the subject
apartment.
2. The tenants had resided in the subject apartment
since January, 1983 and had not had a rent increase for
over four years although the following improvements had
been made by the owner after the tenants had taken
occupancy:
a) nine thermal, replacement windows (approximately
$225.00 each);
b) new electric service and circuit breakers
(approximately $1,200.00); and
c) the complete repainting of the apartment
(approximately $700.00)
3. The rent roll for the building on January 1, 1983 as
to apartments of similar size to the subject apartment was as
follows:
"Apt Rent (1/1/83) Comments
MB $ 250.00
MD 300.00 slightly larger
1B 172.90 rent controlled
2B 540.00
4B 350.00
5B 350.00
5C 475.00 slightly larger"
In the appealed order, the Administrator employed a default
procedure to establish the stabilized rent as indicated on the
chart annexed thereto and made a part thereof.
In its Petition, the owner contends that the Administrator
erred on the rent calculation chart attached to the order by
failing to acknowledge:
1) that the prior tenant paid $375.00 a month rent;
2) $3,925.00 had been spent for improvements to the
apartment; and
3) the owner was entitled to a 9% Guideline increase
and a 5% vacancy increase over the prior tenant's
rent upon the renting of the apartment to the
complaining tenants.*
* The owner also alleged that it had purchased the building in a
foreclosure sale. However, this allegation was subsequently
withdrawn.
In their answer to the owner's Petition, the tenants assert,
in substance, the following: 1) the alleged prior tenant's rent
is irrelevant in a challenge to the initial legal regulated rent,
in the absence of a rental history that goes back to April 1,
1980; 2) the alleged improvements were not substantiated by the
ADM. REVIEW DOCKET NOS. BK 910232 RO and CB 910194 RT
owner and the tenant did not agree to their installation; 3)
absent a written lease being offered by the owner, the owner was
not entitled to a rent increase from the tenants.
In their Petition, the tenants contend that the Administrator
erred in the rent calculation chart attached to the order by
failing to acknowledge:
1. The tenants took occupancy on January 1, 1983 (not August
1, 1983 as the chart indicates) and, therefore, a) tenant's
initial stabilized rent should have been calculated based on the
lowest rent paid in January 1983, not August and b) the
overcharges should be calculated as collected as of January 1,
1983 on;
2. The chart incorrectly indicates that the rent charged and
paid after May 31, 1987 was only $575.00 whereas as of June 1,
1987, the tenants were charged, and paid, $592.25. The tenants
attached copies of cancelled checks representing rent payments
through November 30, 1987.
3. The order below incorrectly names the tenant(s) as "S.
Weiteman" whereas it should have recited the complaining tenants
names as set forth in the complaint: Seth Weitzman and Jill
Bleemer.
The owner's answer to the tenants' Petition does not directly
respond to the issues raised in that Petition. It merely notes
that the owner has filed a Petition also.
The Commissioner is of the opinion that the owner's Petition
should be denied and the tenants' Petition should be granted in
part.
The Commissioner finds that in accordance with the Tenant
Protection Regulations (TPR) Section 2506.1(a)(3)(ii), in the
absence of records showing the rent paid for the subject
accommodation on the date four years prior to the date of the
initial registration, the Administrator employed a Partial
Compliance rent computation formula to determine the tenant's
initial legal regulated rent. The Commissioner also finds that
this procedure was properly applied to determine that rent, but
the Administrator inadvertently calculated the resultant
overcharges as if the tenants had taken occupancy on August 1,
1983 instead of the date when in fact they had taken occupancy,
January 1, 1983. The Commissioner notes that, in its answer
below, the owner indicated that the tenants had taken occupancy on
January 1, 1983.
The Commissioner finds that the calculation of the tenants'
initial regulated rent, using the Partial Compliance default
procedure, was proper as set forth in the order below.
The Commissioner notes that the use of the foregoing method
precludes any claim the owner may otherwise have had to a
Guidelines increase over the alleged rental of the prior tenant.
ADM. REVIEW DOCKET NOS. BK 910232 RO and CB 910194 RT
The Commissioner finds that the tenants are in error when
they contend that the Administrator should have used the lowest
stabilized rent paid for an apartment in the same line as the
subject apartment as of January 1, 1983 to calculate the tenants'
initial rent under the default procedure. The Commissioner finds
that for apartments which were subject to the Emergency Tenant
Protection Act of 1974 (ETPA on or before April 1, 1984, the
subject default procedure required the use of the lowest rent in
the line as set forth in the 1984 registration statement filed
with respect to the subject building (or complex) and the housing
accommodations therein. The Commissioner finds that that was the
procedure followed by the Administrator herein.
The Commissioner also finds that the owner indicated below
that the alleged improvements to the apartment were installed
after the tenants had taken occupancy and, therefore, absent the
tenants' agreement to pay a rent increase for such improvements,
the owner was not entitled to such an increase [accord: CI 910205
RO]. No evidence of any such agreement has been submitted by the
owner either below or on appeal. Moreover, no substantiation of
the cost of the alleged improvements has been submitted. Lastly,
painting is not the type of "improvement" that would entitle an
owner to a rent increase. Therefore, the Commissioner finds that
the cost of said improvements was, properly, not factored into the
calculation of the tenants' stabilized rent.
The Commissioner also finds that the calculation of the
overcharges should be calculated up to the date of the order
below, that is through and including the rent due on October 1,
1987.
The Commissioner also finds that there is no question, but
that the complainants herein are Seth Weitzman and Jill Bleemer
and not S. Weiteman as set forth in the order below.
The Commissioner notes that the parties hereto have
confirmed, in post - Petition correspondence, that the tenants
purchased the subject apartment as a cooperative apartment on
April 8, 1988.
Based on the foregoing, the Commissioner finds that the
Administrator's order should be amended to reflect the fact that
the tenants herein are Jill Bleemer and Seth Weitzman and that the
refund due them is as follows:
Total Overcharge found by the Administrator:
$10,988.35
Excess Security found by the Administrator: - 204.00
Net Overcharge found by Administrator:
(including interest) $10,784.35
Additions
Overcharge from 1/1/83 - 7/31/83
$225.00 x 7 months = 1,575.00
Overcharge from 6/1/87 - 10/18/87
(9/30/85 stabilized rent of $371.00
plus 3% Guidelines Increase
ADM. REVIEW DOCKET NOS. BK 910232 RO and CB 910194 RT
for one year renewal [6/1/87-
5/31/87] = $382.13)
$592.25 (Rent Charged)
- 382.13
($210.12 x 5 months) + (interest) = 1,066.48
New excess security figure: 210.12
Total Overcharge to be refunded to the tenants: $13,635.95
The Administrator's order, as amended by this order and
opinion, may, upon the expiration of the period in which the owner
may institute a proceeding pursuant to Article Seventy-eight of
the Civil Practice Law and Rules, be filed and enforced by the
tenants in the same manner as a judgment.
THEREFORE, pursuant to the Emergency Tenant Protection Act of
1974, and the Tenant Protection Regulations, it is
ORDERED, that the Petition f the above named petitioner-
tenants be, and the same hereby is, granted in part; that the
Petition of the above named petitioner-owner be, and the same
hereby is, denied; and that the Administrator's order be, and the
same hereby is, amended in accordance with this order and opinion.
ISSUED:
ELLIOT SANDER
Deputy Commissioner
ADM. REVIEW DOCKET NOS. BK 910232 RO and CB 910194 RT
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