CB 410015 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.: CB 410015 RO
MILFORD MANAGEMENT CORPORATION,
DRO DOCKET NO.: L 3114362 R
CDR 25,560 AS AMENDED
TENANTS: JEFFREY AND DONNA
ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
On February 1, 1988, the above-named petitioner-owner filed a
Petition for Administrative Review against an order issued as
amended on December 29, 1987, by the Rent Administrator, 10
Columbus Circle, New York, New York, concerning the housing
accommodations known as 155 West 68th Street, New York, New York
Apartment No. 615, wherein the Rent Administrator determined that
the owner had overcharged the tenant.
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
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 appeal.
This proceeding was originally commenced by the filing in March
1984 of a rent overcharge complaint by the tenant who stated in
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substance that the owner had not supplied a complete rental history
pursuant to Section 42A of the Rent Stabilization Code. The
tenants had resided in the subject apartment until April 14, 1982
and relocated to apartment 603 in the same building on April 15,
In answer to the complaint, the owner stated in substance that
there was no overcharge and submitted leases from October 1, 1969
plus bills for new equipment installed in the subject apartment.
In Order Number CDR 25,560 as amended, the Rent Administrator had
defaulted the owner, determined that the tenants had been
overcharged and directed a refund to the tenants of $2,700.88
including excess security through April 15, 1982.
In this petition, the owner alleges in substance that the
overcharges should be less because the Rent Administrator failed to
offset the overcharge by allowance for fuel pursuant to Rent
Guidelines Board Order (hereafter RGBO) Numbers 10b and 10c which
were not previously collected by the owner; erroneously defaulted
the owner although a complete set of leases from October 1, 1969
were submitted and therefore the rent charged on October 1, 1969
should not have been reduced by the default adjustment procedure;
the lawful stabilized rent in the lease commencing March 1, 1976
was $429.99 although the owner charged only $415.00 and the Rent
Administrator's order should be modified to reflect these
The tenants failed to respond to the Owner's petition.
The Commissioner is of the opinion that this petition should be
granted in part.
An examination of the records in this case discloses that the
subsequent tenant of the subject apartment who took occupancy April
15, 1982 also filed a complaint of Rent Overcharge in March 1984.
Under Docket L 3111013 R and CDR 26393, an order was issued on
November 10, 1986 finding a rent overcharge for the subsequent
tenant and establishing the rental history of the subject apartment
including the lawful stabilization rent during the occupancy of the
complainants from April 1, 1978 through April 14, 1982. That order
was subsequently modified by the Commissioner on March 28 1990
under Docket AL 410324 RO and as no timely judicial review was
filed pursuant to Article 78, is a final determination establishing
the rental history of the subject apartment.
With regard to the owner's contention that the Rent Administrator
erroneously used the default procedure to establish the October 1,
1969 lawful stabilization rent, the owner is correct in that the
default procedure was not warranted since the owner was only
required to submit a rent history from June 30, 1974.
In the instant case, a vacancy lease commencing May 15, 1973
through May 31, 1976 destabilized the apartment which then became
subject to the Emergency Tenant Protection Act on July 1, 1974 at
the rent charged and paid on June 30, 1974.
The Commissioner rejects the owner's contention that although the
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rental charged was less, the lawful stabilization rent was $429.99
effective March 1, 1976. The principle established in Collingwood
Enterprises provides that where the actual rent charged is less
than the rent with maximum permitted increases, the lawful
stabilization rent is limited to the rent charged.
The Commissioner however acknowledges that the owner is correct in
its contentions that the overcharge should be less because the
lawful stabilization rents for the subject apartment were
established by the Commissioner's prior opinion AL 410324 RO and
the Rent Administrator failed to offset the overcharge by the fuel
surcharges to which the owner was entitled under RGBO Numbers 10b
Taking the aforementioned factors into account, the Commissioner
has recalculated the overcharge for the subject apartment during
the complainants' occupancy by utilizing the lawful stabilization
rents established pursuant to the Commissioner's prior opinion
AL 410324 RO and offsetting the overcharge by the RGBO 10b and 10c
The lawful stabilization rents and amount of rent overcharge are
set forth on the amended rent calculation chart attached hereto and
made a part hereof.
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.
THEREFORE, in accordance with the provisions of the Rent
Stabilization Law and Code as well as the Commissioner's prior
opinion, it is
ORDERED, that this petition for administrative review be, and the
same hereby is, granted in part, and, that the order of the Rent
Administrator be, and the same hereby is, modified in accordance
with this order and opinion as well as the Commissioner's prior
opinion AL 410324 RO. The lawful stabilization rents and the
amount of the rent overcharge are established on the attached chart
which is fully made a part of this order. The amount of the rent
overcharge through April 15, 1982 is $1,340.60.
JOSEPH A. D'AGOSTA
Acting Deputy Commissioner