Docket Number: CB 410033-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
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IN THE MATTER OF THE ADMINISTRATIVE ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.: CB 410033-RO
BRADFORD N. SWETT & ASSOC., DRO DOCKET NOS.: U-3123893-RT
CDR 32299
TENANT: CHITRA NARGOLKAR
PETITIONER
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On February 8, 1988 the above-named petitioner-owner filed a
Petition for Administrative Review against an order issued on
January 13, 1988 by the District Rent Administrator, 10 Columbus
Circle, New York, New York concerning housing accommodations known
as Apartment 2F at 140 Claremont Avenue, New York, New York wherein
the District Rent Administrator determined that the owner had
overcharged the tenant.
The Commissioner notes that this proceeding was filed 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 issue in this appeal is whether the District Rent
Administrator's order was warranted.
The applicable sections of the Law are Section 26-516 of the Rent
Stabilization Law, Section 2526.1(a) of the current Rent
Stabilization Code and Section 42A of the former 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
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, in which she
stated that she had commenced occupancy on September 1, 1981 at a
rent of $450.00 per month.
The owner was served with a copy of the complaint and was requested
to submit rent records to prove the lawfulness of the rent being
charged. In answer to the complaint, the owner submitted a rental
history only from June 1, 1979. On November 23, 1987 the owner was
requested to submit R-42 and DC-2 forms showing that that was the
first stabilized lease, but the owner did not make any further
submissions.
Docket Number: CB 410033-RT
In an order issued on January 13, 1988 the District Rent
Administrator used DHCR default procedures to set the lawful
stabilization rents, determined that the tenant had been overcharged
in the amount of $8,819.47 as of January 31, 1988, and directed the
owner to refund such overcharge to the tenant as well as to reduce
the rent.
In this petition, the owner contends in substance that there was no
rent overcharge in that, as claimed in the owner's answer, the
subject apartment was subject to rent control prior to June 1, 1979;
that the Administrator had the obligation to utilize his own records
to determine that the subject apartment was previously subject to
rent control; and that the owner should not have been held in
default when he was prevented from completing his answer solely by
virtue of the DHCR's own delay in providing the owner with access to
rent control files as required under the Freedom of Information Law.
In answer, the tenant asserts in substance the Administrator
reviewed all relevant records before making a decision; that it was
the owner's responsibility to obtain a full rental history when it
bought the subject premises; that the owner has not produced any
information to warrant reversal of the Administrator's order; and
that the owner is using delaying tactics because of a pending
cooperative conversion.
The Commissioner is of the opinion that this petition should be
denied.
Section 42A of the former Rent Stabilization Code requires than an
owner retain complete rent 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 produce a rental
history from that date.
In the present case, the owner was directed to submit a complete
rental history. Because the owner failed to substantiate his claim
that the leases from 1979 constituted a complete rental history, it
was proper for the Administrator to find the owner in default and
use established DHCR default procedures for setting the lawful rent.
While the owner in his February, 1988 petition requested a remand so
that rent control records could be considered he has still not, more
than 3 1/2 years after filing his petition, submitted any evidence
from DHCR files or otherwise that decontrol occurred in 1979. This
is understandable, since DHCR records contain a July 13, 1961 order
decontrolling the subject apartment and 9 other apartments at 140
Claremont Avenue effective September 16, 1960 because they
constituted additional housing accommodations created by substantial
alterations or remodeling. The Commissioner notes that Morjac
Associates is named as the owner on the decontrol order, and that it
was Mor-Jac Associates from whom the current owner bought the
property on January 13, 1984.
Although the Administrator's order indicated that the owner was
responsible for those overcharges which it collected prior to April
1, 1984 as well as all overcharges on and after that date, the order
Docket Number: CB 410033-RT
did not specify an amount. The overcharge attributable to the owner
from January 13, 1984 to January 31, 1988 is $5,936.07, including
excess security of $117.15.
This order may, upon the expiration of the period in which the owner
may institute a proceeding pursuant to Article seventy-eight of the
civil practice law and rules, be filed and enforced by the tenant in
the same manner as a judgment or not in excess of twenty percent
thereof per month may be offset against any rent thereafter due the
owner.
Because of the possibility that the rents charged were not reduced
after the Administrator's order, the owner is cautioned to adjust
the rent, in leases after those considered by the Administrator, to
amounts no greater than that determined by the Administrator's order
plus any lawful increases, and to register any adjusted rents with
the Administrator's order being given as the reason for the
adjustment.
THEREFORE, in accordance with the Rent Stabilization Law Code, it is
ORDERED, that this petition be, and the same hereby is, denied and
that the District Rent Administrator's order be, and the same
hereby is, affirmed. The total overcharge is $8,819.47 as of
January 31, 1988, including excess security of $117.15. The tenant
may collect $5,936.07 of that from the owner.
ISSUED:
ELLIOT SANDER
Deputy Commissioner
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