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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.: BL 210095 RO
DAVID KATZ,
DRO DOCKET NO.: K-3104169-R/
31,689
TENANT: ROGER KLINGER
PETITIONER
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ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
On November 30, 1987, the above-named petitioner-owner filed a
Petition for Administrative Review against an order issued on
October 27, 1987, by the Rent Administrator, 10 Columbus Circle,
New York, New York concerning the housing accommodations known as
645 East 26th Street, Apartment 2F, Brooklyn, New York, wherein
the Administrator determined that the owner had overcharged the
tenant.
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.
This proceeding was originally commenced on March 30, 1984 by the
filing of a rent overcharge complaint by the tenant.
In answer to the tenant's complaint, the owner set forth a rent
history listing the base rent date as November 1, 1980 and
stated in substance that the tenant was being charged an amount
below the allowable rent as computed by updating 1974-1975
Maximum Base Rent (MBR) rent increases to 1980, the alleged
decontrol date, and increasing the figure obtained by applicable
guidelines increases. The owner, who said it had purchased the
building in December 1984, submitted an incomplete set of leases,
a copy of the 1974-1975 MBR increases (N-26 forms), computerized
rent bills for the former tenant, and a then-current rent roll.
In response, on June 8, 1987, to a Final Notice of Pending
Default, the owner asserted that it was attempting to get
additional information, which was not available from the former
owner, and from the DHCR.
In the order issued on October 27, 1987, the Administrator
determined that due to the owner's failure to submit a complete
rental history, the tenant had been overcharged in the amount of
$5,676.91 including interest on the overcharge occurring on and
BL 210095 RO
after April 1, 1984 and directed the owner to refund such
overcharge to the tenant as well as to reduce the rent.
In this petition, the owner contends that it had made good faith
efforts to obtain substantiating information by requesting MBR
and other Rent Control information from the DHCR, which the owner
asserts would have established the base rent date as was alleged
in the answer. With its appeal the owner submits a letter from
the immediately preceding tenant who indicates that he was the
first rent stabilized tenant when he took occupancy in November
1980 at a rental of $299.00. The owner contends that since the
DHCR failed to respond to its public information request and did
not inspect its own records before issuing a determination, the
Administrator was not justified in determining that the owner was
in default and in using default procedures to determine the rent.
In response to the petition, the tenant contends that the rental
history provided by the owner is incorrect. The tenant argues
that the initial lease should not have included a vacancy
increase because the prior tenant vacated before the expiration
date of his lease.
The Commissioner is of the opinion that this petition should be
granted.
Rent Control records demonstrate that the subject apartment was
occupied by a statutory rent-controlled tenant up until at least
the beginning of 1980 and that the MBR in 1978 had been $277.11.
Further the record including the statement of the prior tenant
and computerized rent bills establish that the prior tenant
Frederic Mirer was the first rent stabilized tenant and paid an
initial rent of $299.00 effective November 1, 1980. Such rent
was then increased by 10% to $328.90 upon a one year lease
renewal effective November 1, 1981 pursuant to Guideline 13. The
rent was then increased to $375.00 upon occupancy by the current
tenant effective July 1, 1982 pursuant to a vacancy allowance
under Guideline 13. Subsequent increases were in accordance with
applicable guideline allowances. Accordingly there was no rent
overcharge. The Commissioner also finds that tenant's contention
regarding the vacancy increase to be without merit, since this
was the tenant's initial lease and more than three months had
elapsed since the commencement of the previous lease, the owner
was entitled to a vacancy increase. Accordingly, there was no
overcharge.
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 provisions of the Rent
Stabilization Law and Code, it is
ORDERED, that this petition be, and the same hereby is, granted
and that the Rent Administrator's order be, and the same hereby
is, revoked, and it is found that no rent overcharge occurred.
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ISSUED:
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JOSEPH A. D'AGOSTA
Acting Deputy Commissioner
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