CC 410442 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.: CC 410442-RO
:
MILFORD MANAGEMENT DRO DOCKET NO.: L 3112437-R
CORP.,
TENANT: ANNA GIANCOTTI
PETITIONER :
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On March 25, 1988 the above-named petitioner-owner filed a Petition
for Administrative Review against an order issued on February 24,
1988, in amendment of an order issued on October 20, 1986, by a
Rent Administrator, concerning housing accommodations known as
Apartment #1110 at 155 West 68th Street, New York, New York,
wherein it was determined that the tenant had been overcharged in
the amount of $2,042.60.
The Commissioner notes that this 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 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 of a rent
overcharge complaint by the tenant, Anna Giancotti, on March 25,
1984.
The tenant took occupancy pursuant to a 3 year lease commencing on
December 1, 1979 and expiring November 30, 1982 at a monthly rent
of $585.00. The complainant vacated the apartment in October, 1982
prior to filing the complaint that commenced this proceeding. She
moved into Apartment 1226 in the same building.
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Francesca Giancotti, the tenant in occupancy after the complainant
in this proceeding, filed her own rent overcharge complaint on the
same day as the complainant in this proceeding. On April 17, 1985
the Rent Administrator issued an order under Docket Number L-
3112824-R, wherein it was determined that the tenant Francesca
Giancotti, had been overcharged for the period from November 15,
1982 through April 30, 1985. The Administrator awarded treble
damages for overcharges collected after April 1, 1984 resulting in
total overcharges of $4,677.32. The amount mistakenly included
overcharges of $2,161.00 to Anna Giancotti for the same period that
was reviewed in the order appealed in this order and opinion.
On October 20, 1986, the Rent Administrator issued the order
appealed herein under Docket # L 3112437-R, wherein it was
determined that the complainant, Anna Giancotti, had been
overcharged, and further directed the owner to refund a total of
$2,119.95 to the tenant.
Subsequently, on February 24, 1988, the Rent Administrator issued
an amended order under Docket Number L 3112437-R, wherein total
overcharges were reduced to $2,042.60 for the same period.
In its petition, dated March 21, 1988, the owner contends that the
Administrator erred by including overcharges that had previously
been included in the award to the subsequent tenant in Order # L
3112824-R. The owner also challenges the amount accepted by the
Administrator for the costs of new equipment installed during the
lease terms of the prior tenant and the complainant. Other items
in the petition did not bear upon the Administrator's calculations.
In her answer, the tenant challenges the owner's claims for the
cost of the new equipment, and supports the Administrator's
determination on this matter.
The Commissioner is of the opinion that this petition should be
denied.
Section 20C(1) of the former Rent Stabilization Code provides in
pertinent part that for the installation of new equipment or
improvements in a particular dwelling unit, the monthly
stabilization rent may be increased by 1/40 of the total cost of
such equipment or improvement, provided that the tenant then in
occupancy has given written consent. If the new equipment is
installed during a vacancy prior to the commencement of a new
tenancy and is reflected in the lease rent, tenant consent to the
increase is implied.
Although petitioner submits its own figures for the cost of
equipment installed for the prior tenant and for the complainant,
the petition fails to mention what evidence in the record verifies
that these alleged items were actually delivered, and what they
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cost. There are no copies of checks for these items, nor does the
invoice specify the intended apartment or date of delivery. The
only document that even mentions the subject apartment is a "point
order" that lists several of the items, without cost or delivery
date, and mentions that it was written pursuant to a telephone
conversation with the prior tenant; but it is unsigned. Such
unspecific and unclear evidence is not sufficient to challenge the
Administrator's findings.
Petitioner claims that because it has credited $4,609.71 to "the
Giancottis" it has already refunded the total overcharge. In
alleged proof of this, the petitioner submits a single page
handwritten note, undated and unsigned, that states that $2,586.09
was "already given" to the tenant in apartment 1226, which
presumably refers to Anna Giancotti, although the note is far from
clear on this. At any rate, the complainant in this case is only
Anna Giancotti, and the note does not specify that this "credit"
was only given to her and applied to the rent in her new apartment.
Any refund to the complainant's daughter, Francesca Giancotti,
cannot be credited here because that was in satisfaction of her own
overcharge complaint, in Order No. L-3112824-R. There is no
breakdown of the amount and date of this alleged "credit", and the
tenant does not acknowledge receipt of the refund. Therefore, on
the basis of the owner's evidence, the amount of overcharges as
stated in the Administrator's order will remain.
This is without prejudice to the owner's right to establish the
amount of refund in a separate proceeding in a court of competent
jurisdiction.
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 an enforced by the
tenant in the same manner as a judgment or not in excess of twenty
percent thereof per month be offset any rent thereafter due the
owner.
THEREFORE, in accordance with the Rent Stabilization Law and Code,
it is
ORDERED, that the owner's Petition be, and the same hereby is
denied; and that the Administrator's order be, and the same hereby
is, affirmed.
CC 410442 RO
ISSUED:
JOSEPH A. D'AGOSTA
Acting Deputy Commissioner
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