CA 110142 RO
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
APPEAL OF DOCKET NO.: CA 110142 RO
WINDSOR PLACE CORPORATION,
DRO DOCKET NO.: L 3114649 R
TENANT: BRUCE MACRAE
ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On January 8, 1988, the above-named petitioner-owner filed a
Petition for Administrative Review against an order issued on April
15, 1987, by the Rent Administrator, 10 Columbus Circle, New York,
New York, concerning the housing accommodations known as 401 East
88th Street, New York, New York, Apartment No. 6E, wherein the Rent
Administrator determined that the owner had overcharged the tenant.
The current owner stated that it received a partial copy of the
order appealed herein from the tenant on January 4, 1988 but was
never served a copy of the order by the Division of Housing and
Community Renewal (DHCR) in April 1987.
A review of the record discloses that the order was addressed to
Delaware Management Company, Inc. however the owner in
correspondence in the file and in the 1986-87 registration was
listed as Dewar Management Company.
Taking the aforementioned into account, the Commissioner deems the
owner's filing of a Petition for Administrative Review on January
8, 1988 as timely.
The Commissioner notes that this proceeding was initiated 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 Appeal is being determined pursuant to the
provisions of Section 42A of the Rent Stabilization Code.
The issue herein is whether the Rent Administrator's order was
CA 110142 RO
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 appeal.
This proceeding was originally commenced by the filing in March
1984 of a rent overcharge complaint by the tenant.
In response to the tenant's complaint, the owner stated in
substance that they had no leases prior to the complainant's
November 1975 vacancy lease but submitted a rent ledger from
September 1, 1974 through December 1974.
In Order Number 29,909, the Rent Administrator determined that due
to the owner's failure to submit a complete rental history, the
owner had collected a rent overcharge of $8,233.38 including
interest on that portion of the overcharge occurring on and after
April 1, 1984.
In this petition, the owner contends in substance that there is new
evidence which does provide a full rent history. The owner
submitted a copy of the rent ledger for the subject apartment from
January 1974 through June 1974.
Further, the owner stated that on May 13, 1983, the Attorney
General had executed an assurance of discontinuance wherein the
owner had submitted a complete rental history to the Attorney's
General's Office and therefore the DHCR should not have continued
to process the complaint or accepted the Attorney General's
findings of no overcharge based on the rent histories approved by
the Attorney General.
In answer to the owner's petition, the tenant stated in substance
that the owner asserted that it only had rental history from
September 1974 and should not be allowed to submit the new evidence
on appeal. The owner did not explain why the rental history could
not be submitted to the Rent Administrator and the tenant,
therefore, questions the authenticity of the new evidence.
The Commissioner is of the opinion that this petition should be
Section 42A of the Rent Stabilization Code requires that an owner
retain complete records for each stabilized apartment in effect
from June 30, 1974 to date and produce them to the DHCR upon
demand. If the apartment was decontrolled from the Rent Control
Law after June 30, 1974, the owner must provide satisfactory
documentary evidence of the apartment's date of decontrol and
submit a rental history from that date.
In the instant case, the owner had not provided a complete rental
history as mandated by Section 42A in the proceeding before the
Rent Administrator although afforded an opportunity to do so and
has not submitted a reasonable excuse for it's failure to do so on
appeal. Since this is not a de novo proceeding, the owner's new
submission of rent ledgers cannot be considered for the first time
on appeal. The owner never raised the issue of the Attorney
Generals's Assurance of Discontinuance before the Rent
CA 110142 RO
Administrator so that this issue too cannot properly be considered
for the first time on appeal.
Further, the Commissioner finds that the Division is not estopped
from exercising its expertise and determining the lawful regulated
rent for the subject apartment from the base date by virtue of an
Assurance of Discontinuance between the owner and the Attorney
Accordingly, the Rent Administrator's order establishing the lawful
stabilization rent utilizing the Section 42A default procedure and
finding a rent overcharge was warranted.
Because this determination concerns lawful rents only through March
31, 1987, the owner is cautioned to adjust subsequent rents to an
amount no greater than that determined by the Rent Administrator's
order plus any lawful increases, and to register any adjusted rents
with this order and opinion being given as the explanation for the
This order may, upon the expiration of the period in which the
owner may institute a proceeding pursuant to Article 78 of the
Civil Practice Law and Rules, be filed and enforced in the same
manner as a judgment or not in excess of twenty percent per month
thereof may be offset against any rent thereafter due the owner.
THEREFORE, in accordance with the provisions of the Rent
Stabilization Law and Code, it is
ORDERED, that this petition for administrative review be, and the
same hereby is, denied, and, that the order of the Rent
Administrator be, and the same hereby is, modified to list the
owner as Dewar Management Company. In all other respects, the Rent
Administrator's order is affirmed.
JOSEPH A. D'AGOSTA
Acting Deputy Commissioner