BC 410389 RO
STATE OF NEW YORK
DIVISION OF HOUSING AND COMMUNITY RENEWAL
OFFICE OF RENT ADMINISTRATION
92-31 UNION HALL STREET
JAMAICA, NEW YORK 11433
IN THE MATTER OF THE ADMINISTRATIVE ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.: BC 410389 RO
POLSIM CONSULTANTS, INC.,
DRO DOCKET NO.: L 3112659 R
TENANT: HENRY GIBSON
ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
On April 20, 1987, the above-named petitioner-owner refiled a
Petition for Administrative Review against an order issued on
February 17, 1987, by a Rent Administrator concerning the housing
accommodations known as 239 East 81st Street, New York, New York,
Apartment No. 4D, wherein the Rent Administrator determined that
the owner had overcharged the tenant.
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, reference to Sections of the Rent
Stabilization Code (Code) contained herein are to the Code in
effect on April 30, 1987.
The Administrative Appeal is being determined pursuant to the
provisions of Section 20(C)(1) of the former Rent Stabilization
The issue herein is whether the Rent Administrator's order was
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.
The tenant originally commenced this proceeding by filing a
complaint of rent overcharge. The owner was served with a copy of
BC 410389 RO
the complaint and was directed to submit a complete rental history.
The owner was advised that if it claimed a rent increase for the
installation of new equipment, it was required to submit invoice(s)
showing the cost and date of installation.
In his/her order, the Rent Administrator established the legal
regulated rent, but only granted a partial rent increase for new
equipment. The Administrator then determined a rent overcharge in
the amount of $1,624.52, including interest, which was reduced by
a refund of $545.09, for a balance of $1,079.43.
In its petition, the owner asserts that because the new equipment
was installed on August 24, 1978 prior to commencement of the
October 1, 1978 lease , the increase for that equipment should have
been included in the base rent for that lease. The owner also
claims that the Rent Administrator should have granted a rent
increase of $6.00 per month for a new refrigerator, which was
installed in February, 1980.
The tenant did not respond to the petition.
It is the opinion of the Commissioner that this petition should be
granted in part.
Section 20C(1) of the former Rent Stabilization Code states as
For dwelling units for which there has been since May 31,
1968, or the date as of which required services are
determined pursuant to Section 2(m) of this Code, an
increase in dwelling space or the installation of new
equipment or improvements in a particular dwelling unit
other than a major capital improvement, the monthly
stabilization rent for the dwelling unit shall be
increased by 1/40th of the total cost for such added
dwelling space, equipment or improvement, including the
cost of installation thereof, provided however, that such
increase shall not be collectible during the term of a
lease then in effect or any renewal thereof except upon
written consent of the tenant.
The owner's contention that because the new equipment was installed
prior to the lease commencing on October 1, 1978, the Administrator
should have included the $31.11 increase in the base when
calculating the guidelines increase for that lease is not correct.
Guidelines 10 and 10a, the applicable guidelines, employ the base
rent in existence on June 30, 1978, which is prior to the equipment
installation. Therefore, the Administrator properly added the
improvement allowance only after applying the guidelines increase
of 8 1/2% to the base. It is noted that the owner did not add the
charge for the equipment until the commencement of the new
lease in October 1978.
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However, the record shows that the owner submitted proof of the
delivery of a new refrigerator in January, 1980, with the tenant's
consent, but that it was omitted from the Administrator's
calculations. The owner resubmitted this documentation with the
petition, but the tenant did not respond.
Finally the petitioner's assertion that it has refunded an
additional $89.17 to the tenant has not been denied, and such
amount will be deducted from the revised total.
As a result of the $6.00 per month increase for the new
refrigerator, effective February, 1980, and the additional refund
of $89.17, total overcharges are reduced to $449.96, from
$1,079.43, as documented in the rent calculation chart affixed
hereto and made a part hereof.
If the owner has already complied with the Administrator's order
and there are arrears due to the owner as a result of the instant
determination, the tenant may pay off the arrears in six (6) equal
monthly installments. Should the tenant vacate after the issuance
of this order, said arrears shall be payable immediately.
THEREFORE, in accordance with the provisions of the Rent
Stabilization Law and Code, it is
ORDERED, that the Petition be, and the same hereby is, granted in
part; and that the Administrator's order be, and the same hereby is
modified in accordance with this order and opinion.
JOSEPH A. D'AGOSTA