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.: BJ 430245-RO
DRO DOCKET NO.: L 3112565-R
ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW IN PART
AND MODIFYING DISTRICT RENT ADMINISTRATOR'S ORDER
On October 15, 1987, the above-named petitioner-owner filed a Petition for
Administrative Review of an order issued on September 10, 1987, by the
District Rent Administrator, 10 Columbus Circle, New York, New York,
concerning housing accommodations known as Apartment 1E, 416 West 47th
Street, New York, New York 10036 wherein the District Rent Administrator
determined that the tenant had been overcharged.
The Commissioner has reviewed all of the evidence in the record and has
carefully considered that portion of the record relevant to the issues
raised by the administrative appeal.
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.
This proceeding was originally commenced by the filing of a rent
overcharge complaint by the tenant with the New York City Conciliation and
Appeals Board, one of the predecessor agencies to the DHCR. The tenant
and owner entered into an initial lease commencing June 1, 1982 and
expiring May 31, 1984 at a monthly rent of $338.66. The tenant, however,
resided in the apartment since 1980 as a roommate of the prior tenant.
The owner was served with a copy of the complaint and was requested to
submit rent records to prove the lawfulness of the rent being charged. In
answer to the complaint, the owner stated that it purchased the property
in January 1983 and was never provided with any information other than the
current leases. The owner could not provide the base rent date for the
apartment and stated that such date was unknown. The owner submitted
copies of a rent roll for September 1984, and leases for the period from
June 23, 1980 through May 31, 1986.
In Order Number L 3112565-R, the District Rent Administrator determined
that the owner failed to provide a full rental history and set the lawful
DOCKET NUMBER: BJ 430245-RO
stabilization rent as of June 1, 1986 at $316.50, assessed treble damages
on that portion of the overcharge occurring after April 1, 1984, and
awarded a total overcharge of $5099.46.
In this petition, the owner contends that the District Rent
Administrator's Order is incorrect and should be modified because although
the law requires an owner to retain documentation back to the base date,
it has complied to the best of its ability in contacting the former owner
and providing a rent roll. Furthermore, the owner contends that any
overcharge should have been apportioned between the present and former
The Commissioner is of the opinion that this petition should be granted in
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 (or the date the apartment became subject to rent stabilization,
if later) to date and to produce such records to the DHCR upon demand.
The owner, was notified of its obligation to provide documentation back to
the base date, but failed to do so. The Commissioner notes that it is
incumbent upon a new owner to obtain the requisite rent histories when
taking title to a building. Although the initial overcharge collected for
the subject apartment occurred under a prior owner, an owner has an
independent obligation to ensure that it is collecting only lawful rents.
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, therefore, that the Administrator properly determined
the lawful stabilized rent using established procedures based on the
owner's failure to submit complete rental data.
Section 2526.1(f) of the current Rent Stabilization Code provides in
pertinent part that for overcharges collected prior to April 1, 1984, an
owner will be held responsible only for his or her portion of the
overcharges, in the absence of collusion or any relationship between such
owner and any prior owner.
The District Rent Administrator failed to specify the exact amounts of
overcharge attributable to the prior and current owners. Since the
uncontroverted evidence is that the present owner took title to the
premises on January 5, 1983 and that all rental payments due for January
1, 1983 were paid to the current owner, the prior owner is liable for the
overcharges it collected from June 1, 1982 to December 31, 1982 in the
amount of $518.56. Since there is no evidence of any collusion or
relationship between the current owner and the prior owner, the owner
herein is responsible only for overcharges occurring from January 1, 1983
through September 30, 1987 in the amount of $4580.90 including excess
security and interest on that portion of the overcharge occurring on or
after April 1, 1984.
As to the overcharge liability of the current owner, this order may, upon
the expiration of the period in which the owner may institute a proceeding
DOCKET NUMBER: BJ 430245-RO
pursuant to Article 78 of the Civil Practice Law and Rules, be filed and
enforced as a judgment, or, not in excess of twenty percent per month
thereof may be offset against any rent thereafter due the owner.
The Commissioner notes that the prior owner or owners were not named by
the tenant in this proceeding and have not been served to date. This
order is therefore issued without prejudice to the tenant's right, if any,
to proceed against the prior owner(s) in a court of competent
THEREFORE, in accordance with the Rent Stabilization Law and Code, it is
ORDERED, that this petition be, and the same hereby is, granted in part
and the District Rent Administrator's order be and the same hereby is,
modified in accordance with this order and opinion.