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
APPEALS OF DOCKET NO. BL410312RT
LINDA WEINBERGER &
KINGSWOOD MANAGEMENT CORP. : DRO DOCKET NO. L3117595R/
ORDER AND OPINION DENYING TENANT'S PETITION FOR ADMINISTRATIVE
REVIEW, MODIFYING RENT ADMINISTRATOR'S ORDER AND GRANTING OWNER'S
PETITION FOR ADMINISTRATIVE REVIEW
On January 4, 1988, the above-named petitioner-tenant timely
re- filed 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 accommodation known as
200 West 79th Street, New York, apartment 5K, wherein the
Administrator dismissed the tenant's complaint. On February 1,
1988, the above named petitioner-owner filed a Petition for
Administrative Review against an order issued on December 28, 1987
by the Rent Administrator, 92-31 Union Hall Street, Jamaica, New
York. These appeals have been consolidated herein as they involve
common issues and facts.
The issues herein is whether the Rent Administrators' orders
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 appeals.
This proceeding was originally commenced by the filing of rent
overcharge complaints by the tenant on March 31, 1984 and on July
18, 1986. The tenant stated that she had taken occupancy of the
subject apartment pursuant to a two year vacancy lease in March 1975
at a rent of $324.50. The tenant alleged that the owner was
attempting to collect unwarranted rent increases based upon the 421-
a tax abatement program.
In response to the tenant's first complaint, the owner stated
in substance that there was no overcharge and submitted a complete
rental history including all 2.2% rent increases.
In the order number CDR 31,495, the Administrator determined
that an overcharge had not occurred and dismissed the tenant's
complaint. In order number ZAG 410422R, the Administrator
determined that the owner had not proved its eligibility for rent
increases based on RPTL's 421-a program and based thereon found that
the tenant had been overcharged.
In this appeal, the tenant contends that the Administrator
erred in allowing the owner an annual 2.2% rent increase for 1984-5
as the owner had waived that increase by failing to collect it in
1984. Further, the owner was attempting to collect ten annual
increases when only nine increases are permitted by the regulations.
Moreover, having failed to provide a properly executed lease,
effective April 1, 1986, the owner is not entitled to receive a rent
increase until such lease is provided.
In response to the tenant's appeal, the owner contends that
since the Rent Administrator's order is in accordance with
applicable law and was based upon the evidence of record, the order
is entitled to affirmance. The owner also asserts that the tenant's
contentions regarding the cited lease have been litigated previously
and resolved under docket number ZAC410292RV. The owner also states
that if an owner fails to collect the annual increase in any given
year, the owner may collect it prospectively at a later date. The
owner further asserts that nine increases rather than ten offers
only partial compensation for the decreasing tax abatement, an
unjust result. Therefore, the owner is entitled to ten increases
for full compensation.
In its own petition, the owner contends that the overcharge
order herein appealed must be reversed as the Administrator failed
to examine the Agency's records which would show that a certificate
of eligibility for 421-a benefits had been filed in another
proceeding and that a previous overcharge complaint had been
dismissed as the owner was entitled to collect 2.2% rent increases.
After careful consideration, the Commissioner believes that
the tenant's petition should be denied, that the Rent
Administrator's order issued under docket no. L3117595R should be
modified, that the Rent Administrator's order issued under docket
number ZAG 410422R should be revoked and that the owner' s petition
should be granted.
Buildings constructed pursuant to Section 421-a of the Real
Property Tax Law receive a tax abatement which declines normally
over a ten year period. To compensate the owner for the increased
taxes caused by operation of Section 421-a, the Section provides in
pertinent part that an owner may receive cumulative annual rent
increases of 2.2% of the initial legal rent over a ten year period,
a total of 19.8%. In the instant case, the owner failed to
collect the increase for 1984. 421-a increases which were never
collected are not permanently waived but may be recouped on a
prospective basis only. The Administrator correctly included in the
rent calculation chart the 421-a increases, including partial
increases. However, the Administrator erred in listing nine full
421-a increases plus a partial increase of $1.12. Accordingly, the
Commissioner herein corrects the rent calculation chart to include
only nine 421-a rent increases minus the partial increase of $1.12.
Since the record indicates that the tenant has not paid the extra
increase included in the rent chart, and that the final rent of
$536.13 (prior to the coop conversion) was less than the rent the
owner could have charged - $566.18 - $1.12 = $565.06 the
Commissioner finds that no overcharge occurred.
Since the record contains evidence of the 421-a status of the
subject building and the apartment here at issue, the Commissioner
finds that the Administrator erred in order number ZAG 410422R in
finding that an overcharge had occurred.
The Commissioner notes that the issue of the renewal lease was
not raised in the proceeding before the Rent Administrator. Since
the scope of review is limited to those facts and evidence which
were raised in the proceeding below, that issue will not be
The Commissioner further notes that the subject building
underwent a coop conversion and that the subject apartment is no
longer subject to the Rent Stabilization Law.
THEREFORE, in accordance with the provisions of the Rent
Stabilization Law and Code, it is
ORDERED, that the tenant's petition for administrative review
be, and the same hereby is, denied, and, that order number CDR
31,495, L3117595R of the Rent Administrator be, and the same hereby
is, modified in accordance with this order and opinion. It is
Ordered that the Owner's Petition for Administrative Review be,
and the same hereby is, granted, and that Rent Administrator's order
number ZAG410422R be, and the same hereby is, revoked and that Rent
Administrastor's order number L3117595R, CDR 31,495 be, and the same
hereby is, modified in accordance with this order and opinion.
LULA M. ANDERSON