BL610043RT, CL610121RO

                                  STATE OF NEW YORK
                            OFFICE OF RENT ADMINISTRATION
                                     GERTZ PLAZA
                               92-31 UNION HALL STREET
                               JAMAICA, NEW YORK 11433

          APPEALS OF                             DOCKET NO.BL610043RT
                                              :  DRO DOCKET NO.16496
          SHIRLEY SMITH AND RALPH LANGSAM                      AH610028RP
          ASSOCIATES, INC.
                                PETITIONERS   : 

               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.  

          BL610043RT, CL610121RO

               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 
          stabilized tenant.

               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 

          BL610043RT, CL610121RO

          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 
          hereby affirmed.

               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 

          BL610043RT, CL610121RO

          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
                                          Deputy Commissioner



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