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 810073-RT
:
DISTRICT RENT ADMINISTRATOR'S
CAROL PERGOLA DOCKET NO. YBE-8-1-0060-R
PETITIONER :
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ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
On February 9, 1988, the above-named tenant filed a petition for
administrative review of an order issued on January 28, 1988 by a
District Rent Administrator concerning the housing accommodation known as
Apartment 3-B, located at 95 Waring Place, Yonkers, New York, wherein the
Administrator determined that the tenant had been overcharged.
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 commenced by the filing of a rent overcharge complaint
by the tenant, dated May 28, 1987.
The tenant took occupancy pursuant to a one-year lease commencing on June
1, 1983 and expiring on May 31, 1984 at a monthly rent of $550.00.
The tenant paid $550.00 per month rent for one month, but the rent was
reduced to $515.00 because the tenant did not utilize a parking space.
On June 3, 1987 the District Rent Administrator mailed to the owner a copy
of the tenant's complaint, a notice requesting an answer within twenty
days, directing the owner to submit to a copy of the complainant tenant's
lease and a copy of the lease immediately prior to the complainant
tenant's initial lease, and a copy of the apartment registration for the
subject apartment. The owner failed to reply.
On August 12, 1987 the District Rent Administrator sent another notice to
the owner, again directing the submission of evidence. The owner did not
reply.
On September 18, 1987 the District Rent Administrator mailed to the owner
a "Notice of Pending Default," informing the owner that the agency records
indicated that the subject premises were not registered, and requesting
the owner to submit proof of registration, within twenty days. The notice
warned the owner that if he failed to comply with D.H.C.R.'s request for
leases, and proof of registration, that the lawful legal regulated rent
would be established by D.H.C.R's default procedure.
DOCKET NUMBER: CB 810073-RT
The owner, despite being given ample opportunity to respond, failed to do
so.
In the order reviewed herein, the Administrator found that the owner was
in default and established the rent at $515.00 per month for the period
from June 1, 1986 to May 31, 1988, based on the April 1, 1984 rent of
$515.00, and computed total overcharges in the amount of $1,141.80,
including excess security and accrued interest from April 1, 1984. In
addition, the Administrator found that the owner failed to file t e 1984-
1987 apartment registrations. Therefore, the order fixed the rent at
$515.00, until the owner served upon the tenant a copy of the apartment
registration, and offered the tenant a choice of one- or two-year lease
based on the legal regulated rent.
In this petition the tenant asserts among other things that the
Administrator failed to determine the initial legal regulated rent for the
date the tenant commenced occupancy, which was June 1, 1983.
The Commissioner is of the opinion that this petition should be granted.
Section 2506.1(2) of the Tenant Protection Regulations states:
A complaint pursuant to this section must be filed
with the Division within four years of the first
overcharge alleged, and no award of the amount of an
overcharge may be based upon an overcharge having
occurred more than four years before the complaint is
filed....
Accordingly, the Administrator should have determined the legal regulated
rent from the date the tenant commenced occupancy, which is June 1, 1983,
four years from the time the tenant filed the complaint.
The Commissioner finds that the owner failed to answer the tenant's
complaint, and the initial legal regulated rent will be determined
pursuant to D.H.C.R's default procedure. The rent, by using the default
procedure, is established at the lowest of the following amounts: 1) The
lowest rent of an apartment containing the same number of rooms; 2) the
current tenant's initial rent less any rent adjustment for the tenant's
initial lease, and 3) the prior tenant's last rent. In this proceeding
the lowest amount is the prior tenant's last rent.
The tenant's petition states:
When I moved in in June of 1983 I asked the landlord
what the previous tenant was paying for rent. He
said, "I do not remember somewhere around $300.00 +
something dollars...."
As the owner did not submit leases, and has not rebuttted the tenant's
assertion that the prior tenant's rent was "$300.00 + something dollars,"
the Commissioner will draw the conclusion that the last rent paid by the
prior tenant was $399.00, the highest amount consistent with the owner's
admission. Accordingly, the initial legal regulated rent for the subject
DOCKET NUMBER: CB 810073-RT
tenant will be established as $399.00. Since the owner failed to file the
apartment registrations from 1984-1987, the rent shall remain at $399.00
per month until the owner files with the agency and serves the tenant with
copies of all of the required apartment registrations and offers the
tenant a choice of a one-year or two-year lease based on the legal
regulated rent as established above.
Accordingly, the Commissioner finds that the initial legal regulated rent
is $399.00 and not $515.00 as previously determined by the Administrator.
The total rent overcharge is $8,004.96, including excess security and
accrued interest from April 1, 1984.
THEREFORE, in accordance with the Emergency Tenant Protection Act of 1974,
and the State Tenant Protection Regulations, it is
ORDERED, that this petition be, and the same hereby is, granted, and that
the Rent Administrator's order be, and the same hereby is, modified in
accordance with this order and opinion; and it is
FURTHER ORDERED, that the attached rent calculation chart be incorporated
in this order and made a part hereof, and it is
FURTHER ORDERED, that rents after January 31, 1988 shall be based upon the
$399.00 monthly rent as indicated on the rent calculation chart, and it is
FURTHER ORDERED, that the owner, Marnia Construction Corp., shall
immediately refund to the tenant all amounts not yet refunded representing
overcharges, penalties, and excess security deposit; and it is
FURTHER ORDERED, that if the owner, Marnia Construction Corp., has not
refunded to the tenant all amounts not yet refunded representing
overcharges, penalties, and excess security deposit upon the expiration of
the period for seeking judicial review of this order, pursuant to Article
78 of the Civil Practice Law and Rules, and the tenant has not credited
any such amounts, the tenant may file and enforce a certified copy of this
order as a judgment for the amount of $8,004.96, as against Marnia
Construction Corp.
ISSUED:
ELLIOT SANDER
Deputy Commissioner
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