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.: CC 210463-RO
ERNEST JERMIAS RENT ADMINISTRATOR'S
DOCKET NO.: ZK 002112-R
------------------------------------X Tenant: Fred & Jeanette Schulman
ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On March 15, 1988, the above-named petitioner-owner filed a Petition for
Administrative Review against an order issued on February 23, 1988 by the
Rent Administrator, 92-31 Union Hall Street, Jamaica, New York concerning
the housing accommodation known as 2302 85th Street, Apartment 6C,
Brooklyn, New York wherein the Administrator determined that an overcharge
had occurred and directed the owner to refund $17,519 inclusive of excess
security and treble damages.
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 on May 31, 1985 of
a rent overcharge complaint by the tenants.
In response to the complaint the owner asserted that there was no
overcharge and submitted a set of leases, executed by various prior tenants
of the subject apartment, dated March 1, 1980 through December 1984 which
indicated that the apartment had previously been rented for a higher rental
than that being paid by the complainant.
In reply, the tenants alleged that the owner had submitted fictitious
leases. As proof that only one tenant, Mr & Mrs. Norato, not the multiple
tenants alleged by the owner had resided in the subject apartment during
the relevant time period, the tenant submitted a number of documents that
directly contradicted the owner's submission, including:
1) the prior tenant's rent receipts;
2) notarized statements by eight neighbors attesting to the
sole tenancy alleged by the complaint;
3) Flatbush Tenants' Council receipt for 1984 membership dues;
4) 1983 tenants' complaint signed by N. Norato as tenant
Division of Housing and Community Renewal records disclose that a copy of
the tenants' reply was served on the owner on November 16, 1987 and that
the owner did not respond on its merits to the tenants' reply.
ADMIN. REVIEW DOCKET NO.: CC 210463-RO
In the order here under review, finding that the evidence regarding the
April 1, 1984 rent and the tenant of record as submitted by the owner and
by the tenant was in conflict, and examining this agency's own records, the
Administrator determined that the tenant had been overcharged and directed
the owner to refund to the tenant $17,519.16 inclusive of excess security
and treble damages.
In his petition, the owner contends that there is no overcharge and that
the order should be reversed.
In support of his contention, the owner resubmits copies of the documents
he had submitted in the proceeding below, the 1984 apartment registration,
and three leases which name three different tenants covering the period
March 1, 1980 through November 30, 1984.
In answer to the owner's petition, the tenants contend that the leases
submitted by the owner are false and supports this contention by reference
to the evidence in the record. The tenants further contend that utility
records subpoenaed by the Enforcement Bureau in a different proceeding
verify the contention with respect to the prior tenancy.
After careful consideration, the Commissioner is of the opinion that this
petition should be denied.
At the outset, the Commissioner notes that the owner does not allege any
errors of fact or of law in the Administrator's order but merely resubmits
the documents previously submitted. As was noted in the rent calculation
chart, the owner and the tenant submitted conflicting evidence regarding
the April 1, 1984 rent and the tenant of record. However, the owner fails
to address or clarify the conflict in his appeal. Moreover, the owner
fails to take cognizance of the disparity between the 1984 apartment
registration which conforms to the evidence submitted by the tenant, as
filed with the agency in May 1984 and the registration copy submitted as
evidence in this proceeding. Balancing the tenant's claims against the
owner's claims, the Commissioner finds that a preponderance of the evidence
shows that the documents submitted by the owner are not credible.
Moreover, evidence i.e. utility records from Brooklyn Union Gas and Con
Edison, adduced at a hearing held in 1989 at the DHCR Enforcement Bureau
shows that the tenant in occupancy of the subject apartment from 1975
through December 1984 was Norato (exhibits C84 and C104). In the totality
of the circumstances, the Administrator correctly relied upon the filed
version of the 1984 apartment registration to determine the legal
stabilization rent and upon the evidence submitted by the tenants.
The owner is directed to reflect the findings and determinations made in
the Rent Administrator's order on all future registration statements,
including those for the current year if not already filed, citing this
Order as the basis for the change. Registration statements already on
file, however, should not be amended to reflect the findings and
determinations made in the Rent Administrator's order. The owner is
ADMIN. REVIEW DOCKET NO.: CC 210463-RO
further directed to adust subsequent rents to an amount no greater than
that determined by the Rent Administrator's order plus any lawful increase.
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 forty percent per month thereof may be offset against any rent
thereafter due the owner.
THEREFORE, in accordance with the Rent Stabilization Law and Code, it is
ORDERED, that this petition be, and the same hereby is, denied, and the
Rent Administrator's order be, and the same hereby is, affirmed.
JOSEPH A. D'AGOSTA
Acting Deputy Commissioner