CB 410070 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
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IN THE MATTER OF THE ADMINISTRATIVE : ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO. CB 410070 RO
: DISTRICT RENT OFFICE
Dowarp Realty c/o DOCKET NO. L 3111092-R
PETITIONER :
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On February 24, 1988, the above-named petitioner-owner filed a Petition
for Administrative Review against an order issued on January 20, 1988,
by the Rent Administrator concerning the housing accommodations known
as 408 West 51st Street, New York, New York, Apartment No. 104,
wherein the Rent Administrator determined that the owner had
overcharged the tenant.
The administrative appeal is being determined pursuant to the
provisions of Section 2526.1 of the Rent Stabilization Code.
The issue herein is whether the Rent Administrator's order was
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 appeal.
This proceeding was originally commenced by the filing in March 1984 of
a rent overcharge complaint by the tenant with the New York City
Conciliation and Appeals Board, one of the predecessor agencies to the
DHCR. The tenant took occupancy pursuant to a lease commencing
November 1, 1982 and expiring October 31, 1983, at a monthly rent of
$600.00.
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 tenant's complaint, the owner stated in substance that
it was unable to establish the base rent date for the subject apartment
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and required the opportunity to examine DHCR records. In addition, the
owner submitted photocopies of leases from March 1, 1979 through
October 31, 1988.
In Order Number CDR 32,376, the Rent Administrator determined that due
to the owner's failure to submit a complete rental history, the tenant
had been overcharged in the amount of $22,964.51, including interest,
on the overcharge occurring on and after April 1, 1984, and directed
the owner to refund such overcharge to the tenant as well as to reduce
the rent.
In this petition, the owner contends that it was not provided with
requested rent control documentation in the DHCR's possession which
could have established the base rent date for the apartment; that the
failure of the DHCR to provide access to the requested data severely
prejudiced the owner, and that, therefore, the determination was
improperly based on an arbitrary application of the three-pronged test.
In answer to the owner's petition, the tenant states in substance that
the owner filed its petition late; that she never received a copy of
the owner's answer to her complaint; and that she believes that that
answer was not timely filed.
The Commissioner finds that the petitioner has defaulted in providing
a complete rental history, and has not, despite ample opportunity,
provided an adequate explanation for said default. Accordingly, the
order of the Administrator should be affirmed.
Section 42A of the former Rent Stabilization Code requires that an
owner retain complete records for each stabilized apartment in effect
from June 30, 1974 (or the date the apartment became subject to rent
stabilization, if later) and to produce such records to the DHCR upon
demand.
Rent Control records indicate that on March 22, 1978 the subject
apartment was decontrolled. The owner submitted leases only from March
1979 forward. The burden of proof is upon the owner to retain complete
records from the base date and to produce them to the DHCR upon demand.
The Commissioner finds that the owner was not prejudiced by the failure
of the Division to provide it with the date of decontrol. That
contention lacks substance, particularly since, by the owner's own
testimony, all available records were submitted, and a complete rental
history from the date of decontrol, including the first stabilized
lease, has not been submitted. Since the owner has not complied with
Section 42A, and is in default, the Administrator properly utilized the
default procedure to establish the lawful stabilized rent.
Based on the foregoing, a total overcharge of $22,964.51 occurred from
November 1, 1982 to January 31, 1988, including interest on the
overcharge occurring on and after April 1, 1984 and excess security.
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Because this determination concerns lawful rents only through
January 31, 1988, 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
adjustment.
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, affirmed.
ISSUED:
JOSEPH A. D'AGOSTA
Acting Deputy Commissioner
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