CA 410178 RT
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
----------------------------------X
IN THE MATTER OF THE ADMINISTRATIVE ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NOS.: CA 410178 RT/
CA 410050-RT
DENNIS ELLISON
AND
ADELE CIACCIO, DRO DOCKET NO.: AF 410214-R
PETITIONERS
----------------------------------X
ORDER AND OPINION
REMANDING THE PROCEEDING TO THE RENT ADMINISTRATOR
On January 13, 1988 the above-named petitioner-tenants filed a
Petition for Administrative Review against an order issued on
December 22, 1987 by a Rent Administrator concerning housing
accommodations known as Apartment 2G at 41 West 72nd Street, New
York, New York wherein the Administrator determined that the owner
had not overcharged the tenant.
The applicable sections of the Law are Section 26-516 of the Rent
Stabilization Law and Section 2526.1(a) of the current Rent
Stabilization Code.
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 on June 27,
1986 of a rent overcharge complaint by the co-tenants in which they
stated that they had commenced occupancy in February, 1986 at a rent
of $1,033.05 per month.
Complainants also stated that the prior tenant had paid $850.00 per
month, which they believed was excessive for the first tenancy after
the decontrol of the apartment.
The owner was served with a copy of the complaint and directed to
submit a complete lease history from the base date to establish the
lawfulness of the rent being charged. The owner submitted an answer
detailing the lease history commencing with the initial registered
CA 410178 RT
rent in 1984 of $850.00 per month.
Prior to the commencement of the present proceeding, the prior
tenant had, on March 30, 1984, filed an overcharge complaint. The
prior tenant had assumed occupancy as the first stabilized tenant
pursuant to a two-year lease commencing on August 1, 1983 at a rent
of $850.00 per month. The owner did not respond to the prior
tenant's complaint.
On November 12, 1986, a Rent Administrator issued an order under
Docket No. L-3113356-R, wherein it was determined that the prior
tenant had been overcharged in the amount of $1,430.09, including
excess security and interest since April 1, 1984. A lawful rent of
$817.31 per month was determined in accordance with default
procedures for the prior tenant's initial lease commencing on August
1, 1983. Neither the prior tenant nor the owner filed a petition
for Administrative Review of this order. Although the owner had
informed the Division of Housing and Community Renewal (DHCR) of its
change of address, the order was mailed by mistake to the owner's
former address. The post office returned it, "addressee unknown".
On December 22, 1987, the Rent Administrator issued an order in
determination of the present proceeding under Docket No. AF 410214-
R, wherein the current tenant's overcharge complaint was denied as
no overcharges were found. Specifically, it was determined that the
initial legal registered rent in 1984 of $850.00 per month had been
lawfully increased in accordance with the allowances permitted under
the guidelines.
In this petition, dated January 13, 1988, the tenants contend that
the Administrator's order was incorrect, firstly, because the rent
of the prior tenant was unlawful and that, furthermore, the prior
tenant was improperly denied a fair market rent appeal that she was
eligible for under the Rent Stabilization Code as the first
stabilized tenant. As a result, the prior tenants and all tenants
after April 1, 1984 will suffer "serious and substantial costs."
The tenants argue that the prior tenant did not understand English
well, and thus did not know the difference between an "overcharge"
complaint and a fair market rent appeal. Secondly, the tenants
contend that in any case their own initial rent should have been no
higher than $817.31, as established in the prior order. Finally,
they contest the granting of the vacancy allowance in computing
their lease because the prior tenant did not leave voluntarily, but
was evicted.
During the pendency of the PAR proceeding, the owner was sent a copy
of the Rent Administrator's order issued under docket no. L-3113356-
R and afforded an opportunity to appeal such order. No response was
received from the owner.
The Commissioner is of the opinion that this proceeding should be
remanded to the Administrator for a new determination.
CA 410178 RT
The Commissioner has consistently recognized the authority of the
DHCR to amend a complaint of general rent overcharge to a fair
market rent appeal in appropriate situations (Accord: ART 08849-L,
ARL 02626-L,
et al). It is also beyond dispute that, had the Administrator who
processed the overcharge complaint of the initial stabilized tenant
so chosen, that proceeding would have been a proper one for such
alteration: the tenant actually stated that she never received a
DC-2 notice and had no knowledge of the prior tenant's rent. But we
have a different issue before us now.
The Administrator instead processed the case as a simple overcharge
complaint and, upon the owner's default, determined the rent
according to standard default procedure. An overcharge was found
and an order issued. The instant appellate proceeding is one not
instigated by the complainant in that proceeding, but by the
subsequent tenants, who demand a fair market rent appeal. They
contend that the Administrator improperly found that they had not
been overcharged, when in fact the owner had grossly inflated the
initial stabilized rent, and that they should be allowed to
challenge it.
The Commissioner cannot recognize this claim. Whatever basis the
first stabilized tenant may have used to appeal the order, the fact
remains that she never did. Even if, as seems likely, she never
received the order, having vacated the premises some nine months
prior to its issuance, she never informed the DHCR of her new
address, thereby indicative that she had abandoned her rights.
There is no evidence that she had intentions to do otherwise.
Insofar as the lawful rent had been adjusted in Administrative Order
No. L-3113356-R, issued on November 12, 1986, it was improper for
the Administrator to issue the subject-order finding no overcharges
without regard for the DHCR's prior determination of the lawful
rent. The proceeding is therefore remanded to the Administrator for
a redetermination of the rent for the lease period included within
the scope of the instant proceeding, in accordance with the final
determination of the rent as stated in Administrative Order No.
L-3113356-R. In making this redetermination, the Administrator is
to afford all parties the opportunity to submit relevant data on the
lawfulness of all rent increases and, if necessary, whether
overcharges were willful.
THEREFORE, in accordance with the Rent Stabilization Law and Code,
it is
ORDERED, that the tenant's petition be, and the same hereby is,
CA 410178 RT
granted to the extent of remanding this proceeding to the Rent
Administrator for further processing in accordance with this Order
and Opinion.
ISSUED:
------------------------
JOSEPH A. D'AGOSTA
Acting Deputy Commissioner
|
