DOCKET NO.: CA710116RT
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. CA710116RT
: DISTRICT RENT ADMINISTRATOR'S
THELMA DYER, DOCKET NO. 2987, Examining Unit
PETITIONER :
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ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW IN PART
The above-named tenant filed a timely petition for administrative review of
an order issued concerning the housing accommodations known as 299 Jackson
Street, Apt. 19E, Hempstead, New York.
The Commissioner has reviewed all the evidence in the record and has
carefully considered that portion of the record relevant to the issues raised
by the petition.
The tenant commenced this proceeding on April 20, 1984 by filing an Objection
to the 1984 Registration Statement for the subject apartment. The tenant
complained, inter alia, that her April, 1984 rent was $328.16. According to
the Registration Statement, the monthly rent was $392.00. The tenant
referred to a "mutual agreement" by which the monthly rent would be reduced
by $28.00 per month in consideration of the tenant's paying directly for her
own electricity. The tenant also submitted a copy of the May 1, 1982 - April
30, 1983 lease which stated the monthly rent at $350.00 per month for that
term. The tenant stated that her then prior rent was $300.00 per month.
On November 25, 1985 the owner filed an answer to the tenant's Objection.
The owner stated that DRO# HEMPTA 83-578 ordered the owner to reduce the
Legal Regulated Rent (LRR) from $350.00 per month to $318.00 per month for
the tenant's initial May 1, 1982 lease and that the owner was complying, even
though it had filed an Article 78 proceeding against that order. The owner
asked that the tenant's complaint be set aside pending resolution of the
Article 78 Proceeding.
Pursuant to the Administrator's request, the owner supplied additional
information on December 14, 1987. This information included a copy of
Administrator's order HEMPTA 83-578, issued November 18, 1983. That Order
was issued pursuant to the filing of an Application for Adjustment of Initial
Legal Regulated Rent by the tenant herein against the owner concerning the
subject premises. In that order the Administrator found that the applicable
special guideline increase to determine the fair market initial rent for
apartments in Hempstead after that Village first adopted the ETPA for a one-
year lease was 6%. See Section 9.b of ETPA (codified as Section 8629.b in
McKinney's Unconsolidated Laws). Therefore the May 1, 1982 increase from
$300.00 to $350.00 was reduced to $318.00. As noted above, the owner
DOCKET NO.: CA710116RT
previously indicated that it was in compliance with this order. The owner
also supplied the Administrator with copies of various leases and lease
renewal agreements. Among these documents were the May 1, 1983 - April 30,
1986 lease and lease renewal agreement which both gave the LRR as $392.00 per
month and the May 1, 1986 - April 30, 1988 lease renewal agreement, which
raised the LRR from $366.70 to $390.54 for the term of the lease. Thus, it
appears the owner had adjusted the 1983-86 rent from $392.00 to $366.70.
On December 24, 1987 the Administrator issued the order herein under review.
In the order the Administrator found that the owner had willfully overcharged
the tenant since May 1, 1983 and therefore the owner was liable for treble
damages. The Administrator prepared a rent calculation chart, finding that
the May 1, 1986 - April 30, 1988 rent was $379.31 per month, as opposed to
the $390.54 indicated by the lease renewal agreement.
On January 12, 1988 the tenant filed this petition for administrative review
(PAR). In the PAR the tenant argues that the Administrator's order
disregards the effects of the Administrator's order HEMPLD83-1/11 (issued
February 22, 1984). In that order, the Administrator had found that due to
the owner's rewiring of the electricity in the subject building from the
master meter to individual meters, the tenant assumed financial responsibili
ty for the electricity used in her apartment. The Administrator in the
February 22, 1984 order had determined the subject tenant (identical to the
tenant in the present case) used approximately $28.00 worth of electricity
each month. The tenant also attached a copy of Administrator's order NHEMP
86CS457RV, concerning the identical parties (issued December 16, 1986), which
mandated the percentage increases the owner was entitled to for various terms
of a lease renewal. The tenant wrote various objections to the order on its
face.
The Commissioner is of the opinion that this petition should be granted in
part, and that the Administrator's order should be modified.
The Rent Calculation Chart included in Docket Number 2987 reports the lawful
stabilized rent for May 1, 1983 - April 30, 1986 (the period during which the
tenant filed her complaint) as $356.16 ($318.00 per month, the previous
lawful rent, plus a 12% allowable guideline increase for a 3-year lease.) In
her complaint, the tenant stated that the 1983 - 1986 rent was $356.16 before
the adjustment for electricity. The Commissioner finds that the tenant's
objections to NHEMP86CS457RV, as stated at PAR, constitute a collateral
attack on another order besides the one being appealed. Therefore, those
objections are beyond the scope of review.
It is undisputed that the tenant's rent was reduced by $28.00 per month by
the February 22,1984 order. Therefore, Order Number 2987, Examining Unit, is
hereby modified to reflect that reduction. The Commissioner notes that, in
a letter dated January 8, 1983 the tenant stated that she had accepted an
apparently partial repayment of the overcharge. The Commissioner similarly
notes that the same tenant, who filed the Objection to the 1984 Registration
Statement has, since the commencement of the instant proceeding vacated the
subject apartment.
The owner is directed to refund to the tenant any and all excess rents in
amounts greater than the legal rent indicated by this order (plus any legal
increases) paid to the owner. If the tenant is unable to collect the
overcharges from the owner, the tenant may then file a complaint of Rent
Overcharge with this agency.
DOCKET NO.: CA710116RT
THEREFORE, in accordance with the provisions of the Tenant Protection
Regulations, it is
ORDERED, that this petition be, and the same hereby is, granted to the extent
that Order Number 2987, Examining Unit, is hereby modified to show that the
October 1, 1983 rent was $328.16, rather than the $356.16 used by the
Administrator. Subsequent rents should be computed from this figure.
ISSUED:
JOSEPH A. D'AGOSTA
Deputy Commissioner
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