CB 410036-RO, CB 410032-RT, EJ 410022-RO
                             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   S.J.R. 6448 (REMIT)
      IN THE MATTER OF THE ADMINISTRATIVE   ADMINISTRATIVE REVIEW 
      APPEALS OF                            DOCKET NOS.: CB 410036-RO
                                                         CB 410032-RT
               LLOYD GOLDMAN                             EJ 410022-RO
          (V.P. OF BRITTON REALTY),
                FORMER OWNER,               DRO DOCKET NOS.: L-3113569-RT     
                                                             CDR 32317       
                                                             ZCB-410102-R
               LLOYD GOLDMAN                  
       (BRISTOL MANAGEMENT COMPANY),        CURRENT TENANT: JOSEPH TRABOSCIA
              CURRENT OWNER,

                   AND

      RICHARD KARPE, FORMER TENANT,

                            PETITIONERS
      ----------------------------------X                                   


                                ORDER AND OPINION
                   GRANTING PETITIONS FOR ADMINISTRATIVE REVIEW
                                     IN PART

      On February 2, 1988 the above-named petitioner-former owner filed a 
      Petition for Administrative Review (Docket No. CB 410036-RO) against an 
      order (Docket No. L-3113569-RT, Order No. CDR 32317) issued on January 
      14, 1988 by the District Rent Administrator, 10 Columbus Circle, New 
      York, New York concerning housing accommodations known as Apartment 5F 
      at 95 Christoper Street, New York, New York wherein the District Rent 
      Administrator determined that the owner had overcharged the tenant.  On 
      February 12, 1988 the former tenant filed his own Petition for 
      Administrative Review (Docket No. CB 410032-RT) against the order.   The 
      former tenant's Petition for Administrative Review ("PAR") contended 
      that he lived in and paid rent for the subject apartment for an 
      additional two months beyond that calculated by the Administrator.  An 
      order was issued on April 21, 1992 finding an additional overcharge for 
      those two months.




      Because it was listed on the Division of Housing and Community Renewal's 
      (DHCR's) computerized case tracking system with an incorrect apartment 












          CB 410036-RO, CB 410032-RT, EJ 410022-RO

      number, the former owner's PAR was overlooked.  The owner subsequently 
      filed a Petition in the Supreme Court pursuant to Article 78 of the 
      Civil Practice Law and Rules requesting that the Order granting the 
      former tenant's Petition for Administrative Review be annulled.  The 
      proceeding was remitted to DHCR, and the tenant's PAR is herein decided 
      on the merits.  The proceeding involving the former tenant's PAR is 
      reconsidered and merged with the former owner's PAR.  

      In February, 1988 the current tenant also filed an overcharge complaint 
      (Docket No. CB 410102-R), citing the Administrator's order and stating 
      that the former owner was asking an additional $15.00 for bathroom 
      improvements even though the bathroom was not improved.  In an order 
      issued on September 21, 1990 a Rent Administrator found an overcharge of 
      $12,199.74 from March 1, 1986 to September 30, 1990 after basing the 
      current tenant's rent on the former tenant's last rent as determined in 
      Docket No. L-3113569-RT (even though the order in that case was under 
      appeal).  The current owner's PAR against the September 21, 1990 order 
      is also being decided in this determination.

      In its PAR against the January 14, 1988 order, the former owner contends 
      in substance that the Administrator should have allowed an increase in 
      a prior lease for a new stove and refrigerator, an invoice for which was 
      previously submitted.  With its petition the former owner has enclosed 
      an August 15, 1991 invoice for a "7920R-SP Slattery range" and an "SSD11 
      Hotpoint refr." at a total cost of $557.01, with a notation "+ $50 
      installation pd. to super."

      In answer, the former tenant asserts in substance that when he commenced 
      occupancy (on January 1, 1983) there was a General Electric refrigerator 
      in poor condition and a dilapidated range.

      In response, the current owner contends in substance that it installed 
      a new stove and refrigerator in July, 1981 at a cost of $607.01, which 
      entitled it to a $15.17 increase in the next lease commencing September 
      1, 1981; that the Administrator granted only a one-year Guideline 
      increase for a 3-year lease from January 1, 1984 to December 31, 1986; 
      and that the Administrator should have allowed M.C.I. increases for a 
      new boiler and new windows, even if the owner did not furnish the orders 
      for them.  [Note:  The owner submitted those order on December 10, 1987.  
      The Administrator included both increases on page 4 of the rent 
      calculation chart for Docket No. L-3113569-RT.]  While the current owner 
      mentions that the former tenant asserted in his PAR that the overcharge 
      calculations should be extended through January 31, 1986, this response 
      does not dispute that assertion.




      On August 28, 1992 the current tenant was asked for the brands and model 
      numbers of his stove and refrigerator, whether they were the same units 
      that were there when he commenced occupancy (on March 1, 1986) and, if 
      not, to specify the previous units, the dates they were replaced, and 






          CB 410036-RO, CB 410032-RT, EJ 410022-RO

      their apparent ages.  In reply, he stated:

           The brand of the stove in the subject premises is a "Kenmore" 
           Model No. 119-7038511.  Said stove was in the apartment when 
           Joseph M. Traboscia took possession of the subject premises.

           The brand of the refrigerator was a "Capri" refrigerator Model 
           No. 363-9610000.  Said refrigerator was in the apartment when 
           Joseph M. Traboscia took possession of the subject premises.  
           That refrigerator broke down on August, 1991 and a replacement 
           was installed in August, 1991.

      In its petition against the September 21, 1990 order, the current owner 
      contends in substance that the lawful rent should be calculated in light 
      of the result of its appeal of the order concerning the former tenant.

      In answer, the current tenant asserts in substance that a different PAR 
      involving a different tenant should not affect the present case.

      In a response dated July 27, 1992, the current owner additionally 
      contends in substance that it is now submitting an invoice and cancelled 
      check for new appliances, furnishings and improvements installed just 
      prior to the time that the current tenant commenced occupancy, and that 
      these should be accepted on appeal since the Administrator did not 
      request them.  With its PAR the current owner has enclosed a cancelled 
      check for $1,862.69, dated February 21, 1986 and made out to Merit 
      Kitchen Distributors, and a February 12, 1986 invoice from Merit for 
      that amount for a vanity, a marble oval item of some sort, a small sink, 
      a faucet and lever, three "micatops," a medicine cabinet, a ductless 
      hood, and one or two units each of ten "Woodmark Elite" models.  The 
      shipping address is typed as 95 Christopher Street. "Apt. 5F" is written 
      by hand in two places.  Also enclosed is a February 24, 1986 invoice 
      from Sears for $890.19 for a refrigerator, stove, and dishwasher, with 
      no brand name or model numbers specified, to be delivered to 95 
      Christopher Street.  The apartment number was written in by hand.  There 
      was additionally enclosed an invoice from Pedace Contracting Co. for 
      $220.00 plus tax for "[r]epaired plaster kitchen complete walls," and an 
      internal disbursement request for Britton Realty to pay an individual 
      $150.00 to "[i]nstall new kitchen."

      In reply, the current tenant asserts in substance that the current owner 
      has not established that the order concerning the prior tenant was 
      incorrect, and that the newly-submitted invoice and check should not now 
      be accepted.


      In a recent submission the current owner additionally contends in 
      substance that the former tenant, who commenced occupancy 19 months 
      after the installation of a new stove and refrigerator, never disputed 
      their installation during the initial proceeding before the 
      Administrator; that he has failed to submit any evidence to dispute the 
      documentary evidence proving their cost; that the current tenant 












          CB 410036-RO, CB 410032-RT, EJ 410022-RO

      initialed a lease rider acknowledging that the vacancy rent factored in 
      the costs of a completely remodelled kitchen, as well as a remodelled 
      bathroom with attendant fixtures and improvements; that the invoices 
      establish that the additional appliances and fixtures were installed; 
      that there is no requirement that the old units have exceeded their 
      useful life; that the current tenant does not dispute the cost of the 
      improvements, but only argues that the documentation should have been 
      submitted earlier; that the current owner should be allowed to now 
      submit proof of the improvements installed prior to the current tenant's 
      tenancy, since the Administrator did not request invoices and cancelled 
      checks even though the current tenant's vacancy lease rider made clear 
      that the rent included an increase based on improvements; and that the 
      current tenant should not be allowed to enjoy an increased level of 
      services without having to pay for them.

      The Commissioner notes that the former tenant's overcharge 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 issue in these appeals is whether the Rent Administrator's orders 
      were 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.

      The applicable sections of the Law are Section 26-516 of the Rent 
      Stabilization Law, Section 20C(1) of the former Rent Stabilization Code, 
      and Sections 2522.4(a) and 2526.1(a) of the current Rent Stabilization 
      Code.

      Regarding the current tenant's contention that the proceeding involving 
      the former tenant should not affect his own case: It was clearly at 
      variance with normal DHCR processing procedures to base a determination 
      of the current tenant's lawful rent on the lawful rent established in 
      another proceeding that was not yet final because it had been appealed.  
      The Administrator should have waited for the PAR to be decided.  Since 
      she did not, since the owner has appealed the later order, since the 
      current tenant's lawful rent is dependent on the lawful rent of the 
      former tenant, and since this order is changing such former tenant's 
      lawful rent, the proceeding involving the current tenant is being merged 
      and decided with the appeals involving the former tenant.

      The owner claims to have purchased and installed a new stove and 
      refrigerator in July, 1981, and to have submitted an invoice evidencing 
      such to the DHCR on September 5, 1985.  The brand of refrigerator 
      claimed by the former tenant to have been there is not the same as 






          CB 410036-RO, CB 410032-RT, EJ 410022-RO

      listed on the invoice.  [The stove and refrigerator claimed by the 
      current tenant to have been in the apartment when he moved in are also 
      not the same as on the invoice; but new appliances had been installed 
      just before he commenced occupancy.]  Clause No. 46 in the rider to the 
      vacancy lease of the current tenant, signed February 10, 1986 and to 
      commence March 1, 1986, provides further evidence to suggest that the 
      stove and refrigerator were never installed in the subject apartment.  
      It provided that:

           46. Landlord shall supply and install new fixtures and 
           improvements agreed to, if any, to the apartment within a 
           reasonable time from the commencement of this lease.  However, 
           it is understood and agreed that there shall be no abatement 
           of rent or any portion thereof for any period during which 
           such improvements are not installed beyond the commencement of 
           this lease term.  Landlord agrees to diligently place the 
           order with the supplier for such improvements within a 
           reasonable time from the commencement of this lease.  ITEMS: 
           (1) Kitchen Cabinets, Stove (2) Refrigerator (3) Dishwasher 
           (4) Vanity

      This appears to evince an intention to install a new stove and 
      refrigerator, as well as other items, during the three-week period 
      before the current tenant would commence occupancy, since he would pay 
      a rent increase  for them without abatement, whether or not they had yet 
      been installed.  Indeed, the owner has recently submitted invoices and 
      cancelled checks to support a claim that they were installed.  It would 
      seem unusual to install a new stove and refrigerator only 4 1/2 years 
      after previously having supposedly installed new units, since their 
      expected useful lives [at least as used in the DHCR's useful life 
      schedule] were 20 and 15 years respectively.  It would not be unique for 
      the units ordered in July, 1981 to have been delivered but then used in 
      another of the 200-odd other apartments in the building.  As discussed 
      later in this order, the vanity ordered for the apartment was delivered 
      in 1986 but had not been installed at least as of two years later.

      It is not surprising that the former tenant did not dispute the 
      installation of a new stove and refrigerator during the earlier 
      proceeding, since they do not appear to have been at issue.  While the 
      file of that proceeding does contain 57 pages submitted by the former 
      owner on September 9, 1985, it does not contain an invoice or cancelled 
      check.  (Even the former owner's PAR in that proceeding does not contain 
      the cancelled check, which is present only in the current owner's July 
      27, 1992 submission).  A "Rental Chart" and a "Rental History" were 
      contained in those 57 pages.  Both of them described as reasons for rent 
      increases Guideline increases, vacancy allowances, electrical inclusion 
      allowances, fuel cost adjustments, and two M.C.I. orders.  The "Rental 
      History" also included a fuel cost adjustment.   Neither the "Rental 
      History" or "Rental Chart" mentioned new equipment.  The $577.53 lawful 
      rent claimed by the former owner for an October 1, 1981 lease 
      represented precisely a 29% increase (10% Guidelines increase, 15% 
      vacancy allowance and 4% electrical inclusion allowance) over the 












          CB 410036-RO, CB 410032-RT, EJ 410022-RO

      claimed lawful rent of $447.70 in the prior lease.  The "Rental History" 
      claimed a prior lawful rent of $467.16 (this being also the actual rent 
      charged) rather than $447.70, and a new lawful rent of $602.64, which is 
      precisely 29% above $467.16.  It appears that the former owner did not 
      submit proof, or even claim, that it had increased the rent because of 
      a new stove and refrigerator.  Even aside from the question of whether 
      or not the owner claimed an increase for new equipment in the proceeding 
      before the Administrator, the Commissioner does not consider that the 
      owner has established the installation of new equipment in 1981.

      The current owner has also claimed an increase for installing new 
      equipment in 1986, submitting various invoices and cancelled checks on 
      July 27, 1992, including a February 12, 1986 invoice for $1,862.69 that 
      involved a vanity as well as other items which mostly seem to be related 
      to kitchen improvements.  However, on March 17, 1988 Sheila Lamas had 
      submitted an answer to the current tenant's complaint, stating in part 
      that:

           tenant's 1987 Rent Registration listed bathroom improvements 
           and tenant did not file a protest timely.  The vanity sink is 
           in the building for the use of apartment 5F and was ordered 
           for the apartment.  If tenant wants it installed in the 
           apartment, landlord will do so.

      While the Commissioner considers it appropriate to make use of the 
      documents submitted on appeal by the current owner, since neither the 
      former nor current owners were ever requested to submit evidence 
      regarding improvements, and they were never at issue in the proceeding 
      (other than for bathroom improvements, which are being disallowed by 
      this order because the March 17, 1988 answer raises doubts that they 
      were actually installed), not all of the documents warrant rent 
      increases.  The 1986 apartment registration had listed increases of 
      $8.00 (representing a cost of $320.00) for a stove, $10.00 ($400.00) for 
      a refrigerator, $8.00 ($320.00) for a dishwasher, $50.00 ($2,000.00) for 
      kitchen improvements, and $15.00 ($600.00) for bathroom improvements.  
      The current tenant (correctly) challenged the claimed bathroom 
      improvements, but not any of the others.  The current tenant did not 
      dispute the general fact of the installation of the other improvements 
      and new equipment detailed in the current owner's July 27, 1992 
      submission.  While his response to the August 28, 1992 request for 
      information about the stove and refrigerator did not state their 
      apparent age at the time he moved in, his statement that the stove was 
      a Kenmore [which is distributed by Sears], is consistent with the 
      February 24, 1986 invoice from Sears for a new stove, refrigerator and 
      dishwasher.  A rent increase is therefore allowed for the documented 
      $890.19 cost of those items.  No increase is allowed for having had 
      Pedace Contracting Co. "[r]epaired plaster kitchen complete walls" of 
      the subject apartment for $220.00 plus tax, because there is no evidence 
      that this was not ordinary maintenance and repairs and because there is 
      no proof of payment. The internal disbursement request to pay $150.00 to 
      an individual named "Nick" to "[i]nstall new kitchen," such request 
      lacking even an "Authorized Signature" or a check number, and 






          CB 410036-RO, CB 410032-RT, EJ 410022-RO

      unsupported by a cancelled check, is also insufficient to warrant a rent 
      increase.

      The February 12, 1986 invoice for $1,862.69 from Merit Kitchen 
      Distributors includes a vanity as well as what appear to be kitchen 
      cabinets and a range hood.  While it is appropriate to allow a rent 
      increase for improvements which were made to the kitchen, the invoice 
      does not provide a cost breakdown for the bathroom items (which are 
      disallowed) and the kitchen items.  The Commissioner considers it 
      appropriate to assign half the cost to each, being $931.35 for the 
      kitchen and $931.34 for the bathroom.  Since the 1986 registration 
      claimed a $600.00 cost for the bathroom, and a $2,000 cost for the 
      kitchen (presumably including about $1,260 from the invoice, $238 for 
      plastering, and $150 to "Nick"), the current tenant is not paying for 
      more improvements in the kitchen than he actually received.  The total 
      increase for improvements and new equipment in the current tenant's 
      initial lease is therefore $45.54 per month ($931.35 for improvements 
      plus $890.19 for new equipment equals $1,821.54, divided by 40 equals 
      $45.54).

      While the current owner is correct that the Administrator erred in 
      stating that the prior tenant's lease from January 1, 1984 to December 
      31, 1986 was for a one-year period, it is incorrect in asserting that a 
      10% Guideline increase should apply to a 3-year lease.  While Guideline 
      15 originally provided for a 10% increase for a 3-year lease, Sections 
      48 and 64 of the Omnibus Housing Act (Chapter 403, Laws of 1983) 
      eliminated 3-year leases effective October 1, 1983.  The former tenant's 
      lease commencing January 1, 1984 could therefore have a Guideline 
      increase of no more than the 7% increase applicable to a 2-year lease.  
      This order is calculating an increase for the lease term beginning 
      January 1, 1984 as if the former tenant had chosen a two-year term, 
      since that was the longest term permitted by the Omnibus Housing Act and 
      since the former tenant had originally chosen a three-year term.  He is 
      considered a month-to-month tenant beginning January 1, 1986, since the 
      parties did not sign a new lease to begin after the expiration of the 
      permitted two-year term.  However, since the former tenant vacated on 
      January 31, 1986, even such a new lease would have had little effect on 
      the overcharge. It would have had no effect on the lawful rent for the 
      next [current] tenant, since a lease in effect for only one month is not 
      effective to increase the base rent for future tenants, particularly 
      when the next lease begins in the same Guidelines period.

      Taking all these factors into account, the Commissioner has recalculated 
      the lawful stabilization rents and the amounts of overcharge for each 
      tenant.  They are set forth on an amended rent calculation chart 
      attached hereto and made a part hereof.  As was done in the order 
      previously issued in Docket No. CB 410032-RT, overcharges of the former 
      tenant are calculated through January 31, 1986. 

      Interest on the overcharges of the former and current tenants is being 
      calculated through January 31, 1988 and September 30, 1990 respectively, 
      those being the end of the months of the applicable Administrator's 












          CB 410036-RO, CB 410032-RT, EJ 410022-RO

      orders.

      While the appeal involving the former tenant was filed on behalf of 
      Britton Realty, while the appeal involving the current tenant was filed 
      on behalf of Bristol Management Company (agent for Caliche Realty 
      Estate, Inc., the current registered owner) at a different 
      address from Britton Realty, while the two Administrator's orders each 
      named only one of the companies, and while this order has described 
      their actions separately, Lloyd Goldman filed the PAR's for each 
      company.  Sheila Lamas has been making submissions in these proceedings 
      as the agent of both companies from 1984 to date. While it is unknown 
      whether there is an identity of principals between the two companies 
      there is enough of a relationship that, pursuant to Section 2526.1(f) of 
      the current Rent Stabilization Code, they are jointly and severally 
      liable to the former tenant for overcharges.  He may collect from either 
      or both, in a total amount not more than determined in this order. The 
      current tenant may collect from the current owner.  

      The current owner is cautioned to adjust the rent, in leases after those 
      considered in this order, to amounts no greater than that determined by 
      this order plus any lawful increases, and to register any adjusted rent, 
      with this order being given as the reason for the adjustment.

      If the current owner has already complied with the Administrator's 
      September 21, 1990 order and there are arrears due to the owner as a 
      result of the present determination, the owner is directed to allow the 
      current tenant to pay off the arrears in twenty four equal monthly 
      installments.  Should the current tenant vacate after the issuance of 
      this order, or have previously vacated, said arrears shall be payable 
      immediately. 

      This order may, upon the expiration of the period in which the former 
      and current owners may institute proceedings pursuant to Article 
      Seventy-Eight of the Civil Practice Law and Rules, be filed and enforced 
      by each tenant in the same manner as a judgment with respect to that 
      portion of this order which pertains to each of them, or not in excess 
      of twenty percent thereof per month of the amount due the current tenant 
      may be offset against any rent thereafter due the owner from such 
      current tenant.

      THEREFORE, in accordance with the Rent Stabilization Law and Code, it is

      ORDERED, that these petitions be, and the same hereby are, granted in 
      part and that the Administrator's orders be, and the same hereby are, 
      modified in accordance with this order and opinion.  The lawful 
      stabilization rents and the amount of overcharge are set forth on an 
      amended rent calculation chart attached hereto and made a part 
      hereof.The total overcharge of Richard Karpe is $2,078.70.  The total 
      overcharge of Joseph Traboscia is $7,329.66, including excess security 
      of $124.76, as of February 28, 1990. 








          CB 410036-RO, CB 410032-RT, EJ 410022-RO

      ISSUED:

                                              ------------------------
                                              JOSEPH A. D'AGOSTA
                                              Acting Deputy Commissioner
       







    

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