Docket Number: BL 410161 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.: BL 410161 RO
1632-1638 SECOND AVE. REALTY CO.,
DRO DOCKET NO.: TA 10338
PETITIONER
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ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
IN PART AND MODIFYING DISTRICT RENT ADMINISTRATOR'S ORDER
On December 11, 1987, the above-named petitioner-owner filed a
Petition for Administrative Review of an order issued on September
10, 1987 by the District Rent Administrator, 10 Columbus Circle,
New York, New York concerning housing accommodations known as
Apartment 25 at 1632 Second Avenue, New York, New York, wherein
the District Rent Administrator determined the fair market rent
pursuant to the special fair market rent guideline promulgated by
the New York City Rent Guidelines Board for use in calculating
fair market rent appeals.
The owner asserts that the Administrator failed to serve the order
on the owner's attorney and that this petition is timely filed
within 35 days of receipt by the owner's attorney of the
Administrator's order. The owner submits a copy of a letter from
the owner's attorney to the Division August 28, 1987 advising the
Division that the firm had been retained to represent the owner
and stating that, pursuant to a conversation with a Division staff
member, the owner's attorney was requesting an extension of time
to answer. Based on the Administrator's failure to serve the
order n the owner's attorney, owner's petition will be accepted as
timely filed.
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 administrative appeal.
This proceeding was originally commenced by the filing of a fair
market rent appeal application by the tenant with the New York
City Conciliation and Appeals Board, one of the predecessor
agencies to the DHCR. The tenant took occupancy pursuant to a
lease commencing December 15, 1977 and expiring December 31, 1979
at a monthly rent of $300.00
Docket Number: BL 410161 RO
During the pendency of the proceeding the tenant advised that she
had vacated the subject apartment and that the last month for
which she paid rent was March 1984 and that her security deposit
was to be used for rent for April 1984. The tenant submitted a
copy of a cancelled rent check for April 1984.
The owner submitted a copy of a stipulation dated May 31, 1984
whereby the tenant agreed to vacate the apartment on or before
October 31, 1984 in consideration for payment of $20,000.00 and
whereby rent was waived through the date of surrender of keys to
the apartment.
In Order Number CDR 31,389, the District Rent Administrator
adjusted the initial legal regulated rent by establishing a fair
market rent of $223.50 effective December 15, 1977, the
commencement date of the initial rent stabilized lease, and
directed the owner to refund to the tenant of excess rent in the
amount of $6,387.58 for the period from December 15, 1977 to April
30, 1984.
In this petition, the owner contends that the District Rent
Administrator failed to apportion the liability for excess rent
between the owner and the prior owner, although the Administrator
was aware of the prior owner by virtue of the tenant's lease and
rent control records and the Administrator erroneously directed a
refund of excess rent through April 30, 1984 although the tenant
paid no rent after November 1982. The owner submits a copy of a
stipulation dated November 17, 1982 wherein the tenant agreed to
vacate the subject apartment on or before July 31, 1983 in
consideration for payment of $20,000.00 and whereby rent was
waived from November 1, 1982 to July 31, 1983. The owner also
asserts that the Administrator failed to afford the owner an
opportunity to submit current comparable rents. The owner further
asserts that the Administrator erroneously listed Rosemary Nadler
as the first stabilized tenant, whereas the first stabilized
tenant was Barbara Nadler, her mother, and that the applicant has
submitted no evidence that she actually paid rent or that she is
entitled to the refund owed her mother.
The Commissioner is of the opinion that this petition should be
granted in part.
Regarding the owner's assertion that the Administrator erroneously
directed a refund of excess rent through April 30, 1984 although
the tenant paid no rent after November 1982, the record in this
case, including the cancelled rent check submitted by the tenant
for the month of March 1984 and the tenant's statement that
security was applied for April 1984 rent, and the stipulation
dated May 31, 1984, indicates that the November 17, 1982
stipulation submitted by the owner, which required that the tenant
vacate the apartment by July 31, 1983, was not adhered to by the
Docket Number: BL 410161 RO
parties, that the tenant paid rent through April 30, 1984, and
that the Administrator properly directed a refund of excess rent
through that date.
Regarding the owner's assertion that the Administrator failed to
afford the owner an opportunity to submit current comparable
rents, the record in this case indicates that by notice dated June
23, 1987 the owner was afforded such opportunity. The owner
failed to respond to that notice. Therefore this portion of the
owner's petition is denied.
Regarding the owner's assertion that the Administrator erroneously
listed Rosemary Nadler rather than Barbara Nadler as the tenant,
the record in this case contains the following documentation as to
the tenancy of Rosemary Nadler: the tenant's initial lease
commencing December 15, 1977 listing Barbara Nadler and daughter
Rosemary Nadler as tenants, a lease commencing July 1, 1981
listing Rosemary Nadler alone as the tenant, a rent bill for the
month of August 1979 listing Rosemary Nadler as the tenant and a
cancelled rent check signed by Rosemary Nadler dated March 1,
1984. Based on the evidence, the Commissioner finds the owner's
assertion that Rosemary Nadler should not have been listed as the
tenant and was not entitled to the refund to be without merit.
It is DHCR policy in fair market rent appeal cases that, in the
absence of evidence of collusion between the prior owner and
current owner, the obligation of the current owner to refund
excess rent is limited to such rent actually collected by the
current owner.
The record in this case indicates that the petitioner-owner
purchased the subject building in February 1981. The prior owner
is liable for $2,949.08, representing excess rent collected from
December 15, 1977 to February 28, 1981. This order is issued
without prejudice to the tenant's rights, if any, to proceed
against the prior owner in a court of competent jurisdiction.
The petitioner-owner is liable for $3,349.00, representing excess
rent collected from March 1, 1981 to April 30, 1984. The owner is
directed to refund this amount to the tenant. The excess security
of $89.50 included in the Administrator's order has been
eliminated since the tenant has indicated that she has vacated the
apartment and her security deposit was applied toward the April
1984 rent.
THEREFORE, in accordance with the Rent Stabilization Law and Code,
it is
Docket Number: BL 410161 RO
ORDERED, that this petition be and the same hereby is granted in
part and the District Rent Administrator's order be and the same
hereby is modified to the extent hereinabove indicated.
ISSUED:
ELLIOT SANDER
Deputy Commissioner
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