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.BL610043RT
: DRO DOCKET NO.16496
SHIRLEY SMITH AND RALPH LANGSAM AH610028RP
ORDER AND OPINION GRANTING TENANT'S PETITION FOR ADMINISTRATIVE
REVIEW AND DENYING OWNER'S PETITION FOR ADMINISTRATIVE REVIEW
On December 18, 1987, the above-named petitioner-tenant filed
a Petition for Administrative Review against an order issued on
November 23, 1987, by the Rent Administrator, 10 Columbus Circle,
New York, New York, concerning the housing accommodations known as
1150 Grand Concourse, Bronx, New York, Apartment No. 3E, wherein the
tenant's objection to the rent was dismissed on the basis that the
initial rent charged the tenant did not exceed the fair market rent
established based on Special Guideline Order Number 8. On December
30, 1988, the above-named petitioner-owner filed a Petition for
Administrative Review against an order issued on December 15, 1988,
by the Rent Administrator, 10 Columbus Circle, New York, New York,
concerning the same housing accommodations, wherein the Rent
Administrator determined that the owner had overcharged the tenant.
Since these petitions involve the same apartment and tenant and
involve a determination of the lawful stabilization rent for said
apartment, they are being consolidated for disposition herein.
The Commissioner notes that the initial rent overcharge
proceeding in this case 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 Appeals are being determined pursuant to the
provisions of Section 42A of the former Rent Stabilization Code and
Section 2526.1 of the current Rent Stabilization Code.
The issue herein is whether the Rent Administrator's order was
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 appeals.
This proceeding was originally commenced by the tenant's filing
of a rent overcharge complaint in March, 1984. In such complaint,
the tenant alleged that she first moved to the subject apartment
pursuant to a lease commencing November 1, 1976, at a rental of
$231.65 per month. The owner named in the tenant's complaint was
served with a copy of said complaint and afforded an opportunity to
submit a complete rental history for the subject apartment but did
not do so.
In Order Number CDR 07,719; B3101318R, the Rent Administrator
determined, based on the failure to submit a complete rental
history, that the tenant had been overcharged. The then current
owner 1150 Grand Concourse Realty Company, filed a petition for
administrative review and on August 18, 1989, the Commissioner under
docket number ARL05871B, issued an order remanding the proceeding to
the Rent Administrator to afford the then current owner an
opportunity to submit a complete rental history from the base date
of June 30, 1974. The base date was determined to be June 30, 1974
since rent control records for the subject apartment disclosed that
the subject apartment had been decontrolled from the City Rent Law
in October, 1973.
In the remanded proceeding, the prior owner and managing agent
of the current owner, Ralph Langsam Associates, Inc., were afforded
an opportunity to submit a complete rental history for the subject
apartment, but did not submit any rental history prior to November
1, 1976 or establish that the tenant herein was the first rent
In the order appealed by the owner in this proceeding -
AH610028RP, the Rent Administrator determined, based on the failure
to submit a complete rental history, that the tenant had been
overcharged in the amount of $4700.20.
In July, 1984, the tenant herein also filed a tenant's
objection to rent and stated that she was filing a fair market rent
appeal. The owner did not submit a rental history in such
In Order Number 16496, the Rent Administrator dismissed the
tenant's objection on the basis that the tenant's initial rent
exceeded the fair market rent established pursuant to Special
Guidelines Order Number 8.
In the owner's petition against order AH610028RP, the owner
alleges in substance that said order conflicts with prior order
16496 which set a higher rent for the tenant and therefore the order
herein is unnecessary and should be revoked.
In the tenant's petition against order 16496, the tenant
alleges in substance that said order should be revoked since the
tenant had previously filed a rent overcharge complaint and the
Commissioner had remanded such complaint under docket ARL05871B.
(It is noted that after the remand order AH610028RP was issued).
The Commissioner is of the opinion that the tenant's petition
should be granted and that the owner's petition should be denied.
An examination of the records in this case discloses that the
subject apartment was decontrolled in October 1973 and that the
tenant herein did not move to the subject apartment until at least
November, 1976. The owner has supplied no rental history prior to
November, 1976. Accordingly, it was error to set the fair market
rent on the basis that the subject apartment was first vacancy
decontrolled and rented to the first rent stabilized tenant in 1976
which is what the Rent Administrator did in docket 16496. Moreover,
the earlier overcharge proceeding begun with the filing of the
overcharge complaint by the tenant in March, 1984 takes precedence
over the later tenant objection to registration filed in July 1984.
It is noted that in said earlier overcharge proceeding, the owner
and prior owner were afforded an opportunity to submit a complete
rental history back to the base date of June 30, 1974 and failed to
submit such rental history. Accordingly, the Rent Administrator
properly found the owners to be in default and properly found that
a rent overcharge had occurred. Therefore the Rent Administrator's
order issued under docket number 16496 is hereby revoked and the
Rent Administrator's order issued under docket number AH610028RP is
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
The Commissioner has determined in this Order and Opinion that
the owner collected overcharges of $4700.20. This Order may, 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, be filed and enforced as a judgment or not in excess of
twenty percent per month of the overcharge may be offset against any
rent thereafter due the owner. Where the tenant credits the
overcharge, the tenant may add to the overcharge, or where the
tenant files this Order as a judgment, the County Clerk may add to
the overcharge, interest at the rate payable on a judgment 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 the owner's petition for administrative review
be, and the same hereby is, denied, that the tenant's petition for
administrative review be, and the same hereby is, granted, that the
order of the Rent Administrator issued under docket number 16496 be,
and the same hereby is, revoked, and that the order of the Rent
Administrator issued under docket number AH610028RP be, and the same
hereby is, affirmed.
JOSEPH A. D'AGOSTA