CF110182RT, CF110200RO
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
APPEALS OF DOCKET NO.CF110182RT
: CF110200RO
GREENBRIAR APARTMENTS CO. DRO DOCKET NO.TC041458G
AND BEHZAD BEROOKHIM
PETITIONERS :
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ORDER AND OPINION GRANTING OWNER'S PETITION FOR ADMINISTRATIVE
REVIEW AND DENYING TENANT'S PETITION FOR ADMINISTRATIVE REVIEW
On June 6, 1988, and June 23, 1988, respectively, the above-
named petitioner-tenant and owner filed Petitions for Administrative
Review against an order issued on May 2, 1988, by the Rent
Administrator, 92-31 Union Hall Street, Jamaica, New York,
concerning the housing accommodations known as 85-15 Main Street,
Briarwood, New York, Apartment No. 8F, wherein the Rent
Administrator determined that the owner had overcharged the tenant.
The Administrative Appeals are being determined pursuant to the
provisions of Section 2526.1 of the Rent Stabilization Code.
The issue herein is whether the Rent Administrator's order was
warranted.
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 filing in
January, 1980 of a rent overcharge complaint by the tenant in which
the tenant stated in substance that he first moved to the subject
apartment in February, 1978, at a rental of $440.63 per month.
In answer to the tenant's complaint, the owner stated in
substance that it was appointed receiver of the subject premises in
March, 1978, and had not been given any rent records prior to its
appointment as receiver.
In Order Number TC041458G, the Rent Administrator determined
that, due to the owner's failure to submit a complete rental
history, the tenant had been overcharged in the amount of $14,345
and directed the owner to refund such overcharge to the tenant as
well as to reduce the rent.
CF110182RT, CF110200RO
In the owner's petition, the owner contends in substance that
it did not default as it submitted all the rent records it had and
that its petition should be considered as timely filed because it
was never served by the DHCR with a copy of the Rent Administrator's
order, but only received such order from the tenant's attorney in a
letter dated June 9, 1988. In addition the owner points out that
the order was addressed to "Green Briar Associates" whereas the
owner's correct name is "Greenbriar Apts. Co." and that this mistake
could be the reason that the order never reached the owner.
In answer to the owner's petition, the tenant stated in
substance that the owner's petition should be dismissed as untimely
and that the mistake in listing the owner's name on the order was
clerical in nature and does not establish that the owner was not
served with the order.
In the tenant's petition, the tenant alleges in substance that
the overcharge determination should be updated through at least
August, 1986.
The Commissioner is of the opinion that the owner's petition
should be granted and that the tenant's petition should be denied.
At the outset, the Commissioner is of the opinion that the
owner's petition must be considered as timely filed. Section 2527.3
of the Rent Stabilization Code provides in pertinent part that
except where an attorney or other authorized representative appears
for the owner, any order directed to the person named in the last
filed registration statement as the owner at the address given
therein shall constitute notice to the person who is then the owner.
An examination of registration records for the subject premises
discloses that in the last filed registration statement prior to the
issuance of the Rent Administrator's order, the registered owner and
manager were both listed as "Greenbriar Apts Co" and not "Green
Briar Associates" as used in the Rent Administrator's order.
Accordingly it must be considered that the owner was not properly
notified of the Rent Administrator's order and therefore the owner's
petition must be considered as timely filed.
Turning to the merits of the case, Section 42A of the former
Rent Stabilization Code requires that an owner retain complete
records for each stabilized apartment in effect from June 30, 1974
(or the date the apartment became subject to rent stabilization, if
later) and to produce such records to the DHCR upon demand.
Section 26-516 of the Rent Stabilization Law, effective April
1, 1984, limited an owner's obligation to provide rent records by
providing that an owner may not be required to maintain or to
produce rent records for more than four (4) years prior to the most
recent registration, and concomitantly, established a four year
limitation on the calculation of rent overcharges.
CF110182RT, CF110200RO
It has been the DHCR's policy that overcharge complaints filed
prior to April 1, 1984, are to be processed pursuant to the Law or
Code in effect on March 31, 1984. (see Section 2526.1 (a) (4) of the
current Rent Stabilization Code.) The DHCR has therefore applied
Section 42A of the former Code to overcharge complaints filed prior
to April 1, 1984, requiring complete rent records in these cases.
In following this policy, the DHCR has sought to be consistent with
the legislative intent of the Omnibus Housing Act (Chapter 403, Laws
of 1983), as implemented by the New York City Conciliation and
Appeals Board (CAB) the predecessor agency to the DHCR, to determine
rent overcharge complaints filed with the CAB prior to April 1,
1984, by applying the law in effect at the time such complaints were
filed so as not to deprive such tenants of their rights to have the
lawful stabilized rent determined from the June 30, 1974 base date
and so as not to deprive tenants whose overcharge claims accrued
more than four years prior to April 1, 1984 of the right to recover
such overcharges. In such cases, if the owner failed to produce the
required rent records, the lawful stabilized rent would be
determined pursuant to the default procedure approved by the Court
of Appeals in 61 Jane Street Associates v. CAB, 65 N.Y.2d 898, 493
N.Y. S. 2d 455 (1985).
However, it has recently been held in the case of J.R.D. Mgmt.
v. Eimicke, 148 A.D.2d 610. 539 N.Y.S. 2d 667 (App. Div. 2d Dept.,
1989). motion for leave to reargue or for leave to appeal to the
Court of Appeals denied ( App. Div. 2d Dept., N.Y.L.J.,
June 28, 1989. p.25, col.1), motion for leave to appeal to the Court
of Appeals denied (Court of Appeals, N.Y.L.J., Nov. 24, 1989, p.24,
col.4)., motion for leave to reargue denied (Court of Appeals,
N.Y.L.J., Feb. 15, 1990, p.25, col.1), that the Law in effect at the
time of the determination of the administrative complaint rather
than the Law in effect at the time of the filing of the complaint
must be applied and that the DHCR could not require an owner to
produce more than four years of rent records.
Since the issuance of the decision in JRD, the Appellate
Division, First Department, in the case of Lavanant v. DHCR, 148
A.D.2d 185, 544 N.Y.S.2d 331 (App. Div. 1st Dept. 1989), has issued
a decision in direct conflict with the holding in JRD. The Lavanant
court expressly rejected the JRD ruling finding that the DHCR may
properly require an owner to submit complete rent records, rather
than records for just four years, and that such requirement is both
rational and supported by the Law and legislative history of the
Omnibus Housing Act.
Since in the instant case the subject dwelling unit is located
in the Second Department, the DHCR is constrained to follow the JRD
decision in determining the tenant's overcharge complaint, limiting
the requirement for rent records to April 1, 1980. An examination
of the rent records from April 1, 1980 discloses that no rent
overcharge occurred. Therefore, the Rent Administrator's order
finding a rent overcharge must be revoked. Further, since there is
no finding of rent overcharge, the tenant's petition to update the
rent overcharge over a greater period must be denied.
CF110182RT, CF110200RO
If the owner has already complied with the Rent Administrator's
order and there are arrears due to the owner as a result of the
instant determination, the tenant is permitted to pay off the
arrears in 24 equal monthly installments. Should the tenant vacate
after the issuance of this order or have already vacated, said
arrears shall be payable immediately.
THEREFORE, in accordance with the Appellate Division ruling in
JRD, it is
ORDERED, that the owner's petition for administrative review
be, and the same hereby is, granted, that the tenant's petition for
administrative review be, and the same hereby is, denied, that the
order of the Rent Administrator be, and the same hereby is, revoked,
and it is found that no rent overcharge occurred.
ISSUED
JOSEPH A. D'AGOSTA
Deputy Commissioner
CF110182RT, CF110200RO
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