BL 410279-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 NO. BL 410279-RT
(refiling of BK 410111-RT)
: DISTRICT RENT OFFICE
DOCKET NOS. AH-410017-RP
TC-077227-G
OWNER: Tompkins Square
Apts./John & Richard
Leslie Harris, Podpirka/JRC Management Co
PRIOR OWNER:
Sanford Sirulnick/Ditmas
Management Corp./ DSS
Realty Co.
PRIOR OWNER:
Harry Schwartz/Horizon
PETITIONER : Realty
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ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
AND REVOKING ORDER NO. AH-410017-RP
On December 31, 1987 the above-named petitioner-tenant perfected
the filing of a Petition for Administrative Review against an
order issued on October 22, 1987 by the District Rent
Administrator, 10 Columbus Circle, New York, New York concerning
the housing accommodations known as 140 East 7th Street, New
York, New York, Apartment No. 1P wherein the District Rent
Administrator determined that the owner had not overcharged the
tenant. The order incorrectly stated the apartment number to be
"1F" rather than "1P".
The Commissioner notes that this proceeding was filed prior to
April 1, 1984. Sections 2526.1(a)(4) and 2521.(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
provision in effect on March 31, 1984. Therefore, unless
otherwise indicated, reference to Sections of the Rent
Stabilization Code (Code) contained herein are to the Code in
effect on April 30, 1987.
The issue herein is whether the Rent Administrator's order was
warranted.
The applicable sections of the Law are Section 26-516 of the Rent
Stabilization Law, Section 42A of the former Rent Stabilization
Code, and Sections 2526.1(a) and 2526.1(f) of the current Rent
BL 410279-RT
Stabilization Code.
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 originally commenced by the filing in
October, 1983 of a rent overcharge complaint (Docket No.
TC-077227-G) by the tenant, in which she stated that she had
commenced occupancy on August 1, 1983 at a rent of $275.00 per
month. She stated that the owner crossed out the original rent
of $275.00 at the time of the signing of the lease and wrote in
$375.00, which she did not initial, that she was charged $200.00
for window gates, and that the owner refused to provide a full
rental history.
In an order issued on September 3, 1985, naming Sanford
Sirulnick, c/o DSS Management, as the current owner, and Harry
Schwartz, c/o Horizon Realty as the prior owner, the
Administrator used DHCR default procedures to set the tenant's
initial lawful rent at $217.00 per month and to find an
overcharge of $4,275.37, including interest and excess security,
as of August 31, 1985.
Sanford Sirulnick/DSS Realty filed a Petition for Administrative
Review (Docket No. ARL 05080-L) against the order, contending
that a rent history from September 1, 1980 had been submitted
earlier. On September 29, 1986 an order was issued remanding the
proceeding to consider the owner's answer.
The new proceeding was assigned Docket No. AH-410017-RP. On
October 22, 1987 the Administrator issued an order finding no
overcharge, on the basis that the $280.00 rent of the prior
tenant on September 1, 1980 was the base rent, that the tenant
had filed a specific rent overcharge complaint, and that only
permissible increases had been taken above that rent. The order
named Sanford Sirulnick/Ditmas Management Corp. as the owner and
Harry Schwartz as the prior owner.
The tenant's Petition for Administrative Review (Docket No. BK
410111-RT) against that order was rejected on procedural grounds
on December 14, 1987. The tenant timely refiled the appeal (now
Docket No. BL 410279-RT), which is herein considered on the
merits. The DHCR mailed copies of the appeal to the current
owners, John & Richard Podpirka, c/o Tompkins Square Apartments,
as well as to Sirulnick/Ditmas and Schwartz.
In her petition, the tenant contends in substance that the owner
did not furnish a rental history from the base date, that it was
correct to calculate a default rent in the first order, and that
in any case the lease of the prior tenant was probably forged.
In answer, the owner asserts in substance that the tenant has
been following the order in Docket No. TC-077227-G in paying a
reduced rent, even though the later order in Docket No.
AH-410017-RP found that the rent being charged by the owner was
lawful; that the tenant has not been following either the lease
rent or a "so ordered" stipulation to pay $575.00 per month use
BL 410279-RT
and occupancy beginning April 1, 1991; and that the tenant now
owes arrears of nearly $13,000.
The Commissioner is of the opinion that the tenant's petition
should be granted and that Order No. AH-410017-RP should be
revoked.
Section 42A of the former Rent Stabilization Code requires that
an owner retain complete rent records for each stabilized
apartment in effect from June 30, 1974 to date and produce them
to the DHCR upon demand. If the apartment was decontrolled from
the Rent Control Law after June 30, 1974 the owner must provide
satisfactory documentary evidence of the apartment's date of
decontrol, and produce a rental history from that date. In the
present case a rental history was submitted only from
September 1, 1980. It would therefore have been proper for the
Administrator to set a default rent in Docket No. TC-077227-G,
even if his files had contained such rental history (resubmitted
on appeal of that order), using established DHCR default
procedures upheld by the Courts (61 Jane Street Associates v.
CAB, NYLJ, May 8, 1984, P. 11 col. 4 [Sup. Ct. N.Y.C.,
Greenfield, J.], 108 A.D. 2d 636, 486 NYS2d 694, affirmed 65 NY2d
898, 493 NYS2d 455 [C.A., 1985]). The order under appeal herein,
Docket No. AH-410017-RP, used the September 1, 1980 rent of the
prior tenant as the "base rent," on the incorrect belief that the
tenant had filed a specific rent overcharge complaint. Since the
tenant in fact filed a general rent overcharge complaint, the
base date was June 30, 1974 in accordance with Section 42A.
Accordingly, the order appealed herein is hereby revoked and the
lawful stabilization rent of $217.00 established by the default
procedure for the complainant in the earlier proceeding is hereby
reinstated. In addition, interest on the overcharge amounts is
being brought up to October 31, 1987 (the end of the month of the
Administrator's order in Docket No. AH-410017-RP), and
overcharges are being apportioned.
On July 23, 1984 the tenant informed the DHCR that Harry Schwartz
had sold the subject premises to DSS Realty/Sanford Sirulnick on
the 1st of that month. The current owners, Tompkins Square
apartments/John and Richard Podpirka/JRC Management Company
purchased it in July, 1987. Section 2526.1(f) of the current
Rent Stabilization Code provides in substance that, for
overcharges collected prior to April 1, 1984, an owner is
responsible only for his or her portion of the overcharges, while
for overcharges occurring on and after April 1, 1984 a current
owner is jointly and severally liable for overcharges collected
by prior owners. The overcharge prior to April 1, 1984 is
$1,264.00 ($158.00 per month x 8 months from August 1, 1983 to
March 31, 1984), which the tenant may collect only from Harry
Schwartz/Horizon Realty. The overcharge from April 1, 1984 to
June 30, 1984 is $623.32 ($158.00 per month x 3 months = $474.00,
plus $149.32 interest on that amount to October 31, 1987), which
the tenant may collect from either the current owner or from
Harry Schwartz/Horizon Realty. The overcharge from July 1, 1984
to August 31, 1985 is $2,767.80 ($158.00 per month x 14 months =
$2,212.00, plus $555.80 interest on that amount to October 31,
1987, which the tenant may collect from either the current owner
or Sanford Sirulnick/DSS Realty Company/Ditmas Realty Company.
No overcharges are calculated for periods after August 31, 1985,
BL 410279-RT
since materials in the record of this appeal proceeding indicate
that the tenant began paying $217.00 per month beginning
September, 1985. Although the Administrator's order in Docket
No. AH-410017-RP included $2.00 per month for window guards, and
even though the owner's September 26, 1990 letter to the tenant
indicated that $2.00 was being billed above the lease rent of
$375.00 at least as of September, 1985, no such increase in the
lawful rent is being allowed because there is no evidence in the
files of either Docket No. TC-077227-G or Docket No. AH-410017-RP
to justify it. The prior owner's January 3, 1985 answer in No.
TC-077227-G (submitted in No. ARL 05080-L) contained both a
rental history form and a computerized rent roll showing a rent
of $375.00 as of that date.
The owner is cautioned to adjust the rent, in leases after those
considered in this order, to amounts no greater than that
determined by this order plus any lawful increases, and to
register any adjusted rent, with this order being given as the
reason for the adjustment.
This order may, upon the expiration of the period in which the
owner may institute a proceeding pursuant to Article 78 of the
Civil Practice Law and Rules, be filed and enforced by the tenant
in the same manner as a judgment or not in excess of twenty
percent per month thereof may be offset against any rent
thereafter due the owner.
THEREFORE, in accordance with the Rent Stabilization Law and
Code, it is
ORDERED, that this Petition be, and the same hereby is, granted;
that Order No. AH-410017-RP be, and the same hereby is, revoked;
and that the Rent Administrator's order in Docket No. TC-077227-G
be, and the same hereby is, modified in accordance with this
order and opinion. The total overcharge by Harry
Schwartz/Horizon Realty from August 1, 1983 to March 31, 1984 is
$1,264.00. The overcharge from April 1, 1984 to August 31, 1985
is $3,391.12, all of which the tenant may collect from the
current owner, in addition to excess security of $158.00. The
lawful stabilization rent is $217.00 per month in the lease from
August 1, 1983 to July 31, 1986.
ISSUED:
JOSEPH A. D'AGOSTA
Acting Deputy Commissioner
BL 410279-RT
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