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.: BL 410233-RO
:
DRO DOCKET NO.: L 3110452-R
111 REALTY CO., CDR 31798
PETITIONER :
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
AFTER REOPENING AND RECONSIDERATION
On December 16, 1987 the abovenamed petitioner owner filed a Petition for
Administrative Review against an order issued on November 12, 1987 by the
Rent Administrator of the 10 Columbus Circle District Rent Office
concerning the housing accommodations known as 111 Third Avenue, Apartment
11A, Lower Manhattan.
The tenant, Wanda Bershen, filed a complaint of overcharges on March 26, 1
984. The herein appealed order of the District Rent Administrator
established stabilized rents and directed a refund of overcharges. A full
rental history had been submitted.
It appears from the record that the rent of the tenant immediately prior
to Ms. Bershen, Debra Kronick, had been adjusted to $356.23 as of
September 1, 1980 pursuant to Guideline 12 for a 1 year lease and to
$416.79 as of September 1, 1981 for a three year lease pursuant to
Guideline 12a.
However, Ms. Kronick vacated less than a month after signing the 1981
lease renewal and Ms Bershen took occupancy as of October 1, 1981 pursuant
to a one year lease at a rent of $528.49. The District Rent Administrator
established her initial rent at $445.29 pursuant to guideline 13 computed
on Ms Kronick's 1980 rent of $356.23 plus 25% (guideline and 15% vacancy).
The District Rent Administrator then updated her rent through September
31, 1988 and directed a refund of $7,604.97, including interest, through
October 30, 1987.
In its petition the owner urged that Ms Bershen's initial rent should have
been computed on the basis of Ms Kronick's last rent of $416.79 rather
than the prior rent of $356.23 because here lease and Ms Kronick's lease
became effective in different Guideline periods.
On February 224, 1989 the Commissioner issued an order and opinion which,
in substance, accepted the owner's arguments, granted the petitio in part
and recomputed overcharges in the amount of $814.44, including interest,
through September 31, 1988.
DOCKET NUMBER: BL 410233-RO
Subsequently, on May 10, 1989, the Commissioner issued an order reopening
the proceedings based on findings that the tenant had sent a letter
containing material allegations to the Administrator on November 9, 1987
which letter did not reach the record until after the Administrator's
herein appealed order of November 12, 1987 had been issued but which
should have been considered on appeal even though the tenant did not
herself file a petition or otherwise respond to the owner's petition.
Said letter, in substance, urges that treble damages are warranted; that
Ms Kronick's September 1, 1981 lease (or lease renewal) must be fraudulent
because it was purportedly signed on August 5, 1981 but she (Ms Bershen)
had been shown the apartment on September 10, 1981 at which time it had
obviously been recently extensively repaired and renovated which could not
have occurred if anyone had been in occupancy in September; that she was
advised by tenants in nearby apartments that the apartment had been vacant
for a considerable time before she took occupancy in October 1981; and
that the Stabilization Rider attached to her initial lease recited that
the prior tenant was one De., Kronick whose last rent was $356.23.
The owner was served with copies of the abovenoted letter and other
documentation and responded, in substance, that the tenant had submitted
no substantial evidence in support of her allegations; that it acquired
the building only after the tenant's complaint had been filed and had no
part in any transactions between the prior owner and Ms Kronick or Ms
Bershen's initial tenancy; that its own conduct has been proper; and that
it should not be liable for treble damages.
The Commissioner after reconsideration after reopening, is of the opinion
that the prior order and opinion should be revoked and the petition
denied.
The Commissioner notes that, since his proceeding was properly reopened
based on an irregularity in a vital matter in that material evidence had
that been previously considered, it is proper to now reconsider the matter
in its entirety.
The Commissioner is of the opinion that the Administrator was correct in
refusing, in computing the complainant tenant's initial rent, to consider
the last lease of the prior tenant since that tenant had been in occupancy
(if at all) less than 3 months of the lease term, even though 2 different
Guideline periods were involved, and since the Stabilization Rider to the
complainant tenant's initial lease did not recite that last rent. Accord
AK 410186-RO; BK 110266-RO (SJR 2757); CG 110199-RT.
It is, therefore, not necessary in this proceeding to pass on the
genuiness of the prior tenant's last lease.
However, the Commissioner is further of the opinion that it would not be
proper to now impose treble damages since the tenant did not, in fact,
file a petition.
If the owner, in reliance on the Commissioner's prior order and opinion,
has collected any rent in excess of that permitted by the Administrator's
order, it shall refund or credit same to the tenant by the first rent
payment date that occurs after 30 days from the date of issuance hereof.
DOCKET NUMBER: BL 410233-RO
The affirmance of the Administrator's order infra includes the provisions
for filing as a judgment or withholding rent after the expiration of the
period in which the owner may seek judicial review of this order.
THEREFORE, pursuant to the Rent Stabilization Law and Code, it is
ORDERED, that the Commissioner's prior order and opinion of February 24,
1989 be, and the same hereby is, revoked; that this petition be, and the
same hereby is, denied; and the order of the Rent Administrator be, and
the same hereby is affirmed.
ISSUED:
ELLIOT SANDER
Deputy Commissioner
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