BI110073RO
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.BI110073RO
: DRO DOCKET NO.49707
84-25 ELMHURST ASSOCIATES TENANT: VIOLET RELICH
PETITIONER :
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ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW IN
PART
On September 24, 1987, the above-named petitioner-owner filed
a Petition for Administrative Review against an order issued on
August 21, 1987, by the Rent Administrator, 10 Columbus Circle, New
York, New York, concerning the housing accommodations known as 84-25
Elmhurst Avenue, Queens, New York, Apartment No. 2S, wherein the
Rent 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.
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 tenant's filing
of a timely objection to the 1984 registration stating in substance
that she was being overcharged in rent.
The owner was served with a copy of the tenant's complaint and
directed to submit a rental history from April 1, 1980. In answer,
the owner submitted copies of leases for the subject apartment from
September 1, 1977.
In Order Number 49707, the Rent Administrator, based on the
rental history from April 1, 1980, determined that the tenant had
been overcharged in the amount of $5,181.44 from December 1, 1980
through August 31, 1987.
In this petition, the owner alleges in substance that it is
entitled to a 10% vacancy allowance pursuant to Guideline 12 upon
initial occupancy by the tenant herein rather than the 5% allowed by
the Rent Administrator since the subject apartment had last been
vacated prior to July 31, 1975. In support of this contention, the
owner submitted a copy of a lease from the prior tenant commencing
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August 15, 1971. Said prior tenant was still in occupancy
immediately prior to occupancy by the tenant herein. The owner
alleges it was not asked to submit such earlier lease in the
proceeding before the Rent Administrator. In addition the owner
alleges that the Rent Administrator failed to include the garage
rental amount of $25.00 in determining the tenant's rent. The owner
states that the garage rent is included in the tenant's rent and
submits a copy of a garage rider not signed by the tenant in support
of this contention.
The Commissioner is of the opinion that this petition should be
denied.
An examination of the rental history discloses that the owner
is correct in its contention that it is entitled to a 10% vacancy
allowance pursuant to Guideline 12 in that the subject apartment was
last vacant in 1971. It is noted that the 1971 lease although
submitted for the first time on appeal is accepted into evidence
since the owner was not asked to submit a rental history prior to
April 1, 1980 in the proceeding before the Rent Administrator.
However, the owner should have submitted the alleged garage
rider in the proceeding before the Rent Administrator and such
garage rider unsigned by the tenant submitted for the first time on
appeal cannot properly be considered since this is not a de novo
proceeding. Moreover, the owner has submitted no evidence to show
that the garage rent was actually included in the tenant's rent or
that the prior tenant's rent did not include a garage space.
Further the overcharge in this case was caused by the owner's
compounding of guideline increases in the same guidelines period
rather than by any omission of a charge of $25.00 for a garage
space. The owner charged $263.45 effective December 1, 1980 - that
is exactly 22% ( 17% for a three year lease plus 5% vacancy
allowance) over the rent charged effective September 1, 1980 during
the same guidelines 12 period which the owner was not permitted to
do. Accordingly, no additional allowance for the alleged use of a
garage space is warranted.
Taking the above factors into account, the Commissioner has
recalculated the lawful stabilization rents and the amount of rent
overcharge for the subject apartment. They are set forth on the
amended rent calculation chart attached hereto and made a part
hereof.
The owner is directed to reflect the findings and
determinations made in this order on all future registration
statements, including those for the current year if not already
filed, citing this order as the basis for the change. Registration
statements already on file, however, should not be amended to
reflect the findings and determinations made in this order. The
owner is further directed to adjust subsequent rents to an amount no
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greater than that determined by this order plus any lawful
increases.
The Commissioner has determined in this Order and Opinion that
the owner collected overcharges of $2,636.10. This Order may, upon
expiration of the period for seeking review of this Order and
Opinion pursuant to Article Seventy-eight of the Civil Practice Law
and Rules, be filed and enforced as a judgment or not in excess of
twenty percent per month of the overcharge may be offset against any
rent thereafter due the owner. Where the tenant credits the
overcharge, the tenant may add to the overcharge, or where the
tenant files this Order as a judgment, the County Clerk may add to
the overcharge, interest at the rate payable on a judgment pursuant
to section 5004 of the Civil Practice Law and Rules from the
issuance date of the Rent Administrator's Order to the issuance date
of the Commissioner's Order.
THEREFORE, in accordance with the provisions of the Rent
Stabilization Law and Code, it is
ORDERED, that this petition for administrative review be, and
the same hereby is, granted in part, and, that the order of the Rent
Administrator be, and the same hereby is, modified in accordance
with this order and opinion. The total overcharge through August
31, 1987 is $2,636.10.
ISSUED
JOSEPH A. D'AGOSTA
Deputy Commissioner
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