BJ430011RO
                             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

      ------------------------------------X 
      IN THE MATTER OF THE ADMINISTRATIVE :  ADMINISTRATIVE REVIEW
      APPEAL OF                              DOCKET NO. BG430011RO

                                          :  DISTRICT RENT OFFICE
           DSZ Realty Company,               DOCKET NO. L3118156R
                                            
                                             TENANT: Neil M. Leff             
             
                            PETITIONER    : 
      ------------------------------------X                             

           ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW


      On September 24, 1987, the above-named owner filed a Petition for 
      Administrative Review against an order issued on September 10, 1987 by 
      the Rent Administrator concerning the housing accommodations known as 16 
      West 85th Street, New York, New York, Apartment No. 1B, wherein the Rent 
      Administrator determined that the owner had defaulted in its obligation 
      to provide the DHCR a complete rental history.

      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 determination 
      finding the owner in default 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 filing on March 30, 1984 
      of a rent overcharge complaint by the tenant. 

      A notice was served on the owner informing the owner of the tenant's 
      overcharge complaint and the requirement that said owner submit to the 
      DHCR a complete rental history.

      In response to the tenant's complaint, the owner stated in substance 
      that, among other things, it purchased the building in 1977 and that it 
      submitted with its response all of the leases it had in its possession, 
      establishing a rental history dating back to October 1, 1977.

      Subsequently, the owner was served with a Final Notice of Pending 
      Default, wherein the owner was notified that it failed to submit to the 
      DHCR a complete rental history and that it was given a final opportunity 
      to do so.

      The owner responded to the above Final Notice of Pending Default stating 
      in essence, that it had previously submitted its response to the 
      tenant's overcharge complaint.  The owner submitted with its response a 
      rental history dating back to October 1, 1977.







          BJ430011RO


      In Order Number L3118156R, the Rent Administrator determined that, due 
      to the owner's failure to submit to the DHCR a complete rental history, 
      the lawful stabilization rent was calculated using the Section 42A 
      Default Procedure, effecting a rent overcharge of $9,550.01, including 
      excess security and interest on that portion of the overcharge occurring 
      on and after April 1, 1984.

      In its petition, the owner objects to the Rent Administrator's 
      determination that said owner failed to produce to the DHCR the 
      requisite rental history in the prior proceeding.  The owner submitted 
      a rental history with its petition.  Further the owner alleges that it 
      should have been credited with a guideline increase and vacancy 
      allowance upon initial occupancy by the tenant herein.

      The Commissioner is of the opinion that this petition should be denied.

      Section 42A of the former Rent Stabilization Code requires that an owner 
      retain complete 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 submit a rental history from that 
      date.

      The Commissioner notes that it is incumbent upon a new owner to obtain 
      the requisite rental histories when taking title to a building.  A 
      failure to obtain a rental history will not serve to excuse a present 
      owner from compliance with the Rent Stabilization Law and Code.  

      The Commissioner finds that, contrary to the petitioner's contention 
      that a requisite rental history had already been submitted to the DHCR, 
      evidence of the record shows that the rental history submitted was, in 
      fact, incomplete to the extent that said rental history failed to 
      account for the period June 30, 1974 through September 30, 1977.

      Accordingly, the lawful stabilization rent established for the subject 
      apartment was calculated utilizing the Section 42A Default Procedure 
      inasmuch as the Rent Administrator properly determined that the owner 
      had defaulted in the requirement that it submit to the DHCR a complete 
      rental history.

      The Commissioner further notes that, pursuant to Section 42A Default 
      procedure, a guidelines adjustment and vacancy allowance for the 
      complaint tenant's vacancy lease are disallowed.

      Further, although the owner submitted a rental history with its appeal, 
      the Commissioner notes that a rental history cannot be accepted for 
      consideration on appeal since this is not a de novo proceeding and the 
      owner has not provided a satisfactory explanation for the non submission 
      of the requisite rental history in the proceeding before the Rent 
      Administrator.  Moreover the rental history submitted on appeal also was 
      not complete.

      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, 


          BJ430011RO

      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 greater than that determined by this order plus any lawful 
      increases.

      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 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 provisions of the Rent Stabilization 
      Law and Code, it is

      ORDERED, that this petition for administrative review be, and the same 
      hereby is, denied, and, that the order of the Rent Administrator be, and 
      the same hereby is, affirmed.



      ISSUED:



                                                                    
                                      JOSEPH A. D'AGOSTA
                                      Deputy Commissioner





    

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