BJ430247RO
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.BJ430247RO
: DRO DOCKET NO.L3111882R
CARL MARZANI TENANT:JOSEPH DOLAN
PETITIONER :
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ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW IN
PART
On October 2, 1987, the above-named petitioner-owner filed a
Petition for Administrative Review against an order issued on
September 3, 1987, by the Rent Administrator, 92-31 Union Hall
Street, Jamaica, New York, concerning the housing accommodations
known as 260 West 21st Street, New York, New York, Apartment No. 4L,
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 filing of a
rent overcharge complaint by the tenant in March, 1984, in which the
tenant stated in substance that he first moved to the subject
apartment in 1979 under a sublease agreement with the prior tenant;
that at the time of the sublease the prior tenant was paying a rent
of $262.00; that he paid the prior tenant $350.00 per month; that he
received a lease in his own name from the owner effective October 1,
1980 at a rent of $400.00 and received a three year renewal lease
effective October 1, 1982 at a rental of $440.00; that in October
1983 the owner sold the subject premises; and that as a result of an
order issued by the New York City Department of Housing Preservation
and Development, the subject apartment became subject to rent
control effective October 27, 1983 at a rental of $282.41; that he
has been paying a rent of $282.41 since November 1983, and has not
been overcharged since paying that rent.
The owner was served with a copy of the tenant's complaint and
directed to submit a rental history. In response, the owner stated
in substance that he had sold the subject premises on October 1,
1983 and did not believe that there was any further rent claim
BJ430247RO
against him; and that he did not have any leases or a "rent book".
In Order Number CDR31,293, the Rent Administrator listed the
October 1, 1980 legal regulated rent as $324.88 and determined that
the owner herein had collected a rent overcharge of $2944.82
including excess security covering the period from October 1, 1980
to October 26, 1983.
In this petition, the owner contends in substance that the
October 1983 rent was paid to the new owner so that he should not be
liable for this amount; that the security deposit was given to the
new owner so that he should not be held liable for the refund of
excess security; that he doesn't understand how the rent effective
October 1, 1980 was established at $324.88 per month and that for
many years he charged less than the legal rent so that he should not
now be penalized.
In answer to the owner's petition, the tenant stated in
substance that the Rent Administrator's order should be affirmed but
that if it is true that the building was sold, the owner should only
be responsible for the time he owned the building.
The Commissioner is of the opinion that this petition should be
granted in part.
The October 1, 1980 rent of $324.88 was calculated as the prior
tenant's rent of $262.00 increased by 24 percent - a guideline
increase of 14 percent and a vacancy allowance of 10 percent for a
two year vacancy lease pursuant to Guideline 12. It was proper to
consider the prior tenant's rent as $262.00 since the tenant claimed
such amount in his original complaint and the owner did not dispute
it or submit a rental history of his own.
However, the record in the instant case discloses that the
owner is correct in his contention that he sold the subject premises
in October 1983 and that the October 1983 rent was paid by the
tenant to the new owner. Further since the owner herein turned over
the security deposit to the new owner, the excess security should be
deleted from the overcharge as well. Accordingly, these amounts are
being subtracted from the total overcharge leaving a total remaining
overcharge of $2794.44 for the period from October 1, 1980 through
September 30, 1983.
Further the owner's contention that he may at one time have
accepted less rent than he could have charged does not excuse the
overcharge which occurred during occupancy by the tenant herein.
The owner is directed to reflect the findings and
BJ430247RO
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
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, granted in part, and, that the order of the Rent
Administrator be, and the same hereby is, affirmed as modified to
show a total overcharge excluding excess security of $2794.44.
ISSUED
JOSEPH A. D'AGOSTA
Deputy Commissioner
BJ430247RO
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