BL210105RO

                                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. BL210105RO

                                          :  DRO DOCKET NO. K3106757R
           J.R.D. Mgmt. Corp.,                              (CDR31730)

                                             TENANT: Phyllis Worthy           
               
                            PETITIONER    : 
      ------------------------------------X                             

          ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW


      On December 7, 1987 the above-named petitioner-owner filed a Petition 
      for Administrative Review against an order issued on November 5, 1987   
      by the Rent Administrator, 10 Columbus Circle, New York, New York  
      concerning the housing accommodations known as 55 Linden Boulevard, 
      Brooklyn, New York, Apartment No. 3B 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 in March, 1984
      of a rent overcharge complaint by the tenant, in which she stated that 
      she had commenced occupancy on October 11, 1979 at a rent of $300.00 per 
      month.

      In answer to the tenant's complaint the current owner, who purchased the 
      building on May 16, 1985, made several requests for a copy of the 
      complaint.

      In Order Number CDR 31730, which named as owner the company listed only 
      on the 1984 registration, the Rent Administrator determined that, due to 
      the owner's failure to submit a complete rental history, the tenant had 
      been overcharged in the amount of $3,776.05, including interest on the 
      overcharge occurring on and after April 1, 1984, and directed the owner 
      to refund such overcharge to the tenant as well as to reduce the rent.




      In this petition, the owner registered as such since 1985 alleges in 







          BL210105RO

      substance that it never received a copy of the tenant's complaint, and 
      that it should have an opportunity to provide a full rental history.

      The Commissioner is of the opinion that this petition should be granted.
           
      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) and to produce such records to the DHCR upon 
      demand.


      Section 26-516 of the Rent Stabilization Law, effective April 1, 1984, 
      limited an owner's obligation to provide rent records by providing that 
      an owner may not be required to maintain or to produce rent records for 
      more than four (4) years prior to the most recent registration and, 
      concomitantly, established a four year limitation on the calculation of 
      rent overcharges.

      It has been the DHCR's policy that overcharge complaints filed prior to 
      April 1, 1984 are to be processed pursuant to the Law or Code in effect 
      on March 31, 1984. [See Section 2526.1 (a) (4) of the current Rent 
      Stabilization Code.]  The DHCR has therefore applied Section 42A of the 
      former Code to overcharge complaints filed prior to April 1, 1984, 
      requiring complete rent records in these cases.  In following this 
      policy, the DHCR has sought to be consistent with the legislative intent 
      of the Omnibus Housing Act (Chapter 403, Laws of 1983), as implemented 
      by the New York City Conciliation and Appeals Board (CAB) the 
      predecessor agency to the DHCR, to determine rent overcharge complaints 
      filed with the CAB prior to April 1, 1984 by applying the law in effect 
      at the time such complaints were filed so as not to deprive such tenants 
      of their rights to have the lawful stabilized rent determined from the 
      June 30, 1974 base date and so as not to deprive tenants whose 
      overcharge claims accrued more than four years prior to April 1, 1984 of 
      the right to recover such overcharges.  In such cases, if the owner 
      failed to produce the required rent records, the lawful stabilized rent 
      would be determined pursuant to the default procedure approved by the 
      Court of Appeals in 61 Jane Street Associates v. CAB, 65 N.Y.2d 898, 493 
      N.Y. S. 2d 455 (1985).

      However, it has recently been held in the case of J.R.D. Mgmt. v. 
      Eimicke, 148 A.D.2d 610, 539 N.Y.S. 2d 667 (App. Div. 2d Dept., 1989), 
      motion for leave to reargue or for leave to appeal to the Court of 
      Appeals denied ( App. Div. 2d Dept., N.Y.L.J., June 28, 1989. p.25, 
      col.1), motion for leave to appeal to the Court of Appeals denied (Court 
      of Appeals, N.Y.L.J., Nov. 24, 1989, p.24, col.4), motion for leave to 
      reargue denied (Court of Appeals, N.Y.L.J., Feb. 15, 1990, p.25, col.1), 
      that the Law in effect at the time of the determination of the 
      administrative complaint rather than the Law in effect at the time of 
      the filing of the complaint must be applied and that the DHCR could not 
      require an owner to produce more than four years of rent records.




      Since the issuance of the decision in JRD, the Appellate Division, First 
      Department, in the case of Lavanant v. DHCR, 148 A.D.2d 185, 544 
      N.Y.S.2d 331 (App. Div. 1st Dept. 1989), has issued a decision in direct 


          BL210105RO

      conflict with the holding in JRD.  The Lavanant court expressly rejected 
      the JRD ruling, finding that the DHCR may properly require an owner to 
      submit complete rent records, rather than records for just four years, 
      and that such requirement is both rational and supported by the Law and 
      legislative history of the Omnibus Housing Act.

      Since in the instant case the subject dwelling unit is located in the 
      Second Department, the DHCR is constrained to follow the JRD decision in 
      determining the tenant's overcharge complaint, limiting the requirement 
      for rent records to April 1, 1980.

      In this case, an examination of the rental history from April 1, 1980 
      discloses that the April 1, 1980 rent was the $300.00 rent being paid by 
      the complainant.  The subsequent lawful rents were $342.00 ($300.00 + 
      14%) per month from November 1, 1980 to October 31, 1982; $355.68 
      ($342.00 + 4%) per month from November 1, 1982 to October 31, 1983; 
      $369.90 ($355.68 + 4%) per month from November 1, 1983 to October 31, 
      1984; and $403.20 ($369.90 + 9%) per month from November 1, 1984 to 
      October 31, 1986.  Since these were the rents being charged the tenant, 
      no overcharge has been shown.  

      If the owner has already complied with the Rent Administrator's order 
      and there are arrears due to the owner as a result of the instant 
      determination, the tenant is permitted to pay off the arrears in 24 
      equal monthly installments.  Should the tenant vacate after the issuance 
      of this order or have already vacated, said arrears shall be payable 
      immediately.

      THEREFORE, in accordance with the Appellate Division ruling in JRD, it 
      is

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


      ISSUED:



                                                                    
                                      JOSEPH A. D'AGOSTA
                                      Deputy Commissioner










          BL210105RO


                                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.  BL210105RO

                                           :  DRO DOCKET NO. K3106757R
           J.R.D. Mgmt. Corp.,                               (CDR31730)
                                              
                                              TENANT: Phyllis Worthy

                            PETITIONER     :
      -------------------------------------X 

          ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW

      On December, 7, 1987 the above-named petitioner-owner filed a petition 
      for Administrative Review against an order issued on November 5, 1987 by 
      the Rent Administrator, 10 Columbus Circle, New York, New York 
      concerning the housing accommodations known as 55 Linden Boulevard, 
      Brooklyn, New York, Apartment No.  3B where in 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 here in 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 in March, 1984 of 
      a rent overcharge complaint by the tenant, in which she stated that she 
      had commenced occupancy on October 11, 1979 at a rent of $300.00 per 
      month.

      In answer to the tenant's complaint the current owner, who purchased the 
      building on May 16, 1985, made several requests for a copy of the 
      complaint.

      In order Number CDR 31730, which named as owner of the company listed 
      only on the 1984 registration, the Rent Administrator determined that, 
      due to the owner's failure to submit a complete rental history, the 
      tenant had been overcharged in the amount of $3,776.05, including 
      interest on the overcharged occurring on and after April 1,1984, and 
      directed the owner to refund such overcharge to the tenant as well as to 
      reduce the rent.


      In this petition, the owner registered as such since 1985 alleges in 


          BL210105RO

      substance that it never received a copy of the tenant's complaint, and 
      that it should have an opportunity to provide a full rental history.

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

      Section 42A of the former Rent Stabilization Code required 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)  and to produce such records to the DHCR upon 
      demand.

      Section 26-516 of the Rent Stabilization Law, effective April 1,1984, 
      limited an owner's obligation to provide rent records by providing that 
      an owner may not be required to maintain or to produce rent records for 
      more than four  (4)  years prior to the most recent registration and, 
      concomitantly, established a four year limitation on the calculation of 
      rent overcharges.

      It has been the DHCR's policy that overcharge complaints filed prior to 
      April, 1984 are to be processed pursuant to the Law or Code in effect on 
      March 31, 1984.  [See Section 2525.1  (a)  (4)  of the current Rent 
      Stabilization Code.]  The DHCR has therefore applied Section 42a of the 
      former Code to overcharge complaints filed prior to April 1, 1984, 
      requiring complete rent records in these cases.  In following this 
      policy, the DHCR has sought to be consistent with the legislative intent 
      of the Omnibus Housing Act  (Chapter 403, Laws of 1983), as implemented 
      by the New York City conciliation and Appeals Board  (CAB)  the 
      predecessor agency to the DHCR, to determine rent overcharge complaints 
      filed with the CAB prior to April 1, 1984 by applying the law in effect 
      at the time such complaints were filed so as not to deprive such tenants 
      of their rights to have the lawful stabilized rent determined from the 
      overcharge claims accrued more than four years prior to April 1, 1984 of 
      the right to recover such overcharges. In such cases, if the owner would 
      be determined pursuant to the default procedure approved by the Court of 
      Appeals in 61 Jane Street Associates v. CAB, 65 N.Y.2d 898, 493 N.Y.S. 
      2d 455  (1985).

      However, it has recently been held in the case of J.R.D.  Mgmt.  v.  
      Eimicke, 148 A.D.2d 610, 539 N.Y.S. 2d 667  (App.  Div.  2d Dept., 
      1989), motion for leave to reargue or for leave to appeal to the Court 
      of Appeals denied  (App.  Div.  2d Dept., N.Y.L.J., June 28, 1989. p.25, 
      col.1), motion for leave to appeal to the Court of Appeals denied  
      (Court of Appeals, N.Y.L.J., Nov. 24, 1989, p.24, col.4), motion for 
      leave to reargue denied  (Court of Appeals, N.Y.L.J., Feb. 15, 1990, 
      p.25,col.1), that the Law in effect at the time of the determination of 
      the administrative complaint rather than the Law in effect at the time 
      of administrative complaint rather than the Law in effect at the time of 
      the filing of the complaint must be applied and that the DHCR could not 
      require an owner to produce more than four years of rent records.






      Since the issuance of the decision in JRD, the Appellate Division, First 
      Department, in the case of Lavanant  v.  DHCR, 148 A.D.2d 185, 544 
      N.Y.S.2d 331  (App.  Div. 1st Dept. 1989), has issued a decision in 







          BL210105RO

      direct conflict with the holding in JRD.  The Lavanant court expressly 
      rejected the JRD ruling, finding that the DHCR may properly require an 
      owner to submit complete rent records, rather than records for just four 
      years, and that such requirement id both rational and supported by the 
      Law and Legislative history of the Omnibus Housing Act.

      Since in the instant case the subject dwelling unit is located in the 
      Second Department, the DHCR is constrained to follow the JRD decision in 
      determining the tenant's overcharge complaint, limiting the requirement 
      for rent records to April 1, 1980.

      In this case, an examination of the rental history from April 1, 1980 
      discloses that the April 1, 1980 rent was the $300.00 rent being paid by 
      the complainant.  The subsequent lawful rents were $342.00  ($300.00 = 
      14%)  per month from November 1, 1980 to October 31, 1982; $355.68  
      ($342.00 + 4%)  per month from November 1, 1982 October 31 1983; $369.90  
      ($355.68 + 4%)  per month from November 1, 1983 to October 31, 1984; and 
      $403.20  ($369.90 + 9%)  per month from November 1, 1984 to October 31, 
      1986.  Since these were the rents being charged the tenant, no 
      overcharge has been shown.

      If the owner has already complied with the Rent Administrator's order 
      and there are arrears due to the owner as a result of the instant 
      determination, the tenant is permitted to pay off the arrears in 24 
      equal monthly installments.  Should the tenant vacate after the issuance 
      of this order, or have already vacated, said arrears shall be payable 
      immediately.

      THEREFORE, in accordance with the Appellate Division ruling in JRD, it 
      is

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


      ISSUED: 



                                                                       
                                       JOSEPH A.  D'AGOSTA
                                       Deputy Commissioner

       
    

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