BL210360RO
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. BL210360RO
: DRO DOCKET NO. 79045G/31512
ALEXANDER MUSS & SONS TENANT: SALLY BURRIS
PETITIONER :
ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On December 28, 1987, the above-named petitioner-owner timely
refiled a Petition for Administrative Review against an order issued
on October 6, 1987, by the Rent Administrator, 10 Columbus Circle,
New York, NY, concerning the housing accommodations known as
35 Seacoast Terrace, Brooklyn, NY, parking space, apt. 20 V
wherein the Rent Administrator determined that the owner had
overcharged the tenant.
The Commissioner notes that this proceeding was filed 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.
The Administrative Appeal is being determined pursuant to the
provisions of Section 2(m)(1) of the former 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 on
November 30, 1983 of a rent overcharge complaint by the tenant.
The tenant asserted that the owner was charging almost double the
rent paid by the prior tenant for a parking space.
In answer to the complaint, the owner stated that parking
spaces were not allocated to specific apartments and that the tenant
was charged the applicable rent as of the time the tenant rented the
parking space.
In the order here under review, the Administrator determined
that as an ancillary service provided on the base date, the garage
space was subject to the Rent Stabilization Law and further
determined that the lawful stabilized rent for the garage space as
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of February 1,1981 through January 31, 1984 is $39.13 including
sales tax. The Rent Administrator directed the owner to refund an
overcharge of $513.19 .
In its appeal, the owner contends that 1) based on the Rent
Stabilization Code effective May 1, 1987, the initial garage rent
charged was not governed by the guidelines and the garage rent was
appropriate at the time of rental, 2) the owner's constitutional
rights are being violated because the owner does not own the garage,
3) the owner requests a hearing.
In answer to the appeal, the tenant contends that as this
matter is properly governed by the former Rent Stabilization Code,
guidelines should apply and that there is common ownership of the
subject garage and building. In support thereof, the tenant submits
a copy of the owner's application for a Major Capital Improvements
rent increase in which the owner acknowledges ownership of the
garage and a copy of the garage lease signed by the owner.
The Commissioner is of the opinion that this petition should be
denied.
Section 2526.1(a)(4) of the Rent Stabilization Code effective
May 1, 1987 provides in pertinent part that complaints filed prior
to April 1, 1984 shall be determined in accordance with the RSL and
Code provisions in effect on March 31, 1984. This provision of the
current Code has been upheld by the courts. Lavanant v. DHCR 148
A.D. 2d 185, 544 N.Y.S. 2d 331 (App. Div. 1st Dept. 1989), Century
Tower Associates v. DHCR,( NYLJ, March 24 , 1994, p.29, col.3, NY
Court of Appeals). Accordingly, the Administrator correctly applied
the provisions of the former Rent Stabilization Code in determining
that the garage rent was subject to Rent Stabilization Board
Guidelines orders.
The Commissioner finds that there was common ownership of the
subject garage and apartment at the time the tenant first took
occupancy. The transferring thereafter of the garage to a separate
entity would not change the tenant's entitlement to the protection
of the Rent Stabilization Law and Code. Further, there is no
evidence that the garage ownership was transferred to another entity
during the period of the overcharge herein and the owner did not
raise this contention in the proceeding before the Rent
Administrator. Since this is not a de novo proceeding, this issue
cannot be properly considered on appeal.
Hearings are discretionary and will be held only when required
to resove an issue. A hearing is not required in this proceeding
where the issues raised can be resolved by examination of the
record.
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
greater than that determined by this order plus any lawful
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increases.
The Commissioner has determined in this Order and Opinion that
the owner collected overcharges of $513.19. 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, not in
excess of twenty percent per month of the overcharge may be offset
against rent thereafter due the owner. Where the tenant credits the
overcharge, the tenant may add to the overcharge, interest at the
rate payable on ajudgment 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, 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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