Adm. Rev. Docket No. BH710132RO
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.: BH710132RO
ARTHUR T. MOTT,
DRO DOCKET NO.: (G)BB710044R
TENANT: BRIAN SCHUMER
PETITIONER
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
The above-named petitioner-owner timely filed a Petition for
Administrative Review against an order issued on July 22,1987, by
the Rent Administrator at 50 Clinton Street, Hempstead, New York,
concerning housing accommodations known as apartment number 322 at
21-31 Brewster Street, Glen Cove, New York, wherein the
Administrator determined the stabilized rent and directed the owner
to refund
$ 300.00. to the tenant as a rent overcharge.
The Commissioner has reviewed all of the evidence in the record and
has carefully considered that portion of the evidence relevant to
the issues raised in the administrative appeal.
The issues in this appeal are as follows. Can the Commissioner take
cognizance of certain documentary evidence the petitioner has
submitted for the first time on appeal. If so, does that evidence
substantiate the fact that the landlord incurred $300.00 in legal
fees with respect to the tenant; and, if so, has the landlord
established his entitlement to have collected said sum from the
tenant as additional rent?
The Commissioner is of the opinion that this Petition should be
denied.
The Commissioner finds that he may not take cognizance of the
subject documentary evidence as the landlord failed to address the
issue of the legal fees below and has proffered no explanation, let
alone excuse, for his failure to address said issue below and/or
Adm. Rev. Docket No. BH710132RO
submit the subject documents below.
The Commissioner notes that if the subject documents were not beyond
the scope of review on appeal, the Petition would nevertheless be
denied as said documents do not substantiate $300.00. in legal fees
or support the landlord's implicit position that he was entitled to
assess the tenant as additional rent for said legal fees.
The Petition was filed on the last date on which it would have been
timely, August 26, 1987. The subject documents were subsequently
submitted in a "Supplement" to the Petition which was received by
the Division on September 3, 1987. The documents appear to consist
of five separate statements from Stanford A. Schwartz, Esq. to the
petitioner for sums due on account of legal services and/or
disbursements. A synopsis of these statements follows:
DATE ON WHICH
DATE OF ALLEGED SERVICES
STATEMENT WERE PERFORMED AMOUNT BILLED
July 2, 1986 June 19, 1986 $ 70.00.
November 26, 1986 September 1, 1986 25.00.
January 10, 1987 October [no date]
1986 70.00.
March 10, 1987 February 6, 1987 none
stated
July 20, 1987 June 30, 1987 not
specified
TOTAL STATED AND CLEARLY SPECIFIED BILLINGS: $165.00.
The Commissioner notes that the tenant's complaint, which was served
on the landlord on March 11, 1987, had annexed to it, as Exhibit A,
what appears to be the tenant' rent bill dated February 13, 1987.
That bill contains an entry dated November 21, 1986 denoted "Legal
Fee" for $150.00. and an entry dated January 28, 1987 likewise
denoted "Legal Fee" for $150.00. These two items represent the
$300.00. in legal fees which the Administrator directed the landlord
to refund. The Commissioner points out that the landlord's March 13,
1987 answer to the complaint makes no mention of this $300.00. and
that those portions of the tenant's lease and the prior tenant's
lease which the landlord annexed to his answer contains no language
which states that legal fees may be collected as additional rent.
The Commissioner further notes that neither below nor on appeal has
the landlord asserted, let alone proven, that the legal fees
Adm. Rev. Docket No. BH710132RO
collected were imposed on the tenant by a court order.
Moreover, the Commissioner finds that two of the five bills
submitted are for legal services that post date the last entry in
the tenant's rent bill. Therefore, at the most, the bills submitted
could only be construed as substantiating $165.00. of the $300.00.
in question. But even as to that $165.00., the landlord never
established his entitlement to reimbursement of it either by virtue
of a provision in any lease or court order.
THEREFORE, pursuant to all of the applicable statutes and
regulations, it is
ORDERED, that this Petition be, and the same hereby is denied; and
that the Administrator's order be and the same hereby is affirmed.
ISSUED:
JOSEPH A. D'AGOSTA
Deputy Commissioner
1A2D3D3BH710132.RO
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