CD 210141 RO
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. CD 210141 RO
: DISTRICT RENT ADMINISTRATOR'S
Michael Herman, DOCKET NO. K 3101725 RT
TENANT: Lillian Cardo
ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW IN PART
AND MODIFYING THE ADMINISTRATOR'S ORDER
On April 20, 1988, the above-named owner filed a petition for
administrative review of an order issued on April 4, 1988, by a District
Rent Administrator concerning the housing accommodations known as
1031 Lorimer Street, Brooklyn, New York, Apartment No. 11, wherein the
Rent Administrator determined that the owner had overcharged the tenant.
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 on March 28, 1984. The tenant stated, among other things,
that she asked to see a lease history, but the owner refused to comply.
In answer to the tenant's complaint, the owner stated, in substance,
that that the subject apartment was decontrolled in April, 1976 and
submitted a rent ledger for 1977 to verify the base date rent. His
answer also stated the rental history of the subject unit. The owner's
recitation of the rental history and the tenant's recitation of the
rental history were not identical.
In the order here under review, the Administrator found that the record
contained a complete rental history. In the calculations the
Administrator used the tenant-supplied rental figures and determined
that the lawful stabilization rent was $265.43 for the period of March
1, 1982 through February 28, 1985. The overcharges were $5,030.35
including interest on post-April 1, 1984 overcharges and excess
In his petition for administrative review, the owner states that the
Administrator erred in the calculations by relying on incorrect rental
CD 210141 RO
figures. The owner submits the lease of the prior tenant and a lease of
the current tenant for the period of March 1, 1982 to February 28, 1985
to document his claim.
In her answer to the petition, the tenant reiterated the allegations
After careful consideration, the Commissioner is of the opinion that
this petition should be granted in part and that the Administrator's
order should be modified.
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
Section 26-516 of the Rent Stabilization Law, effective April 1, 1984,
limited an owner's obligation to provide rent records by providing that
an owner may not be required to maintain or to produce rent records for
more than four (4) years prior to the most recent registration, and
concomitantly, established a four year limitation on the calculation of
It has been the DHCR's policy that overcharge complaints filed prior to
April 1, 1984, are to be processed pursuant to the Law or Code in effect
on March 31, 1984. (see Section 2526.1 (a) (4) of the current Rent
Stabilization Code.) The DHCR has therefore applied Section 42A of the
former Code to overcharge complaints filed prior to April 1, 1984,
requiring complete rent records in these cases. In following this
policy, the DHCR has sought to be consistent with the legislative intent
of the Omnibus Housing Act (Chapter 403, Laws of 1983), as implemented
by the New York City Conciliation and Appeals Board (CAB) the
predecessor agency to the DHCR, to determine rent overcharge complaints
filed with the CAB prior to April 1, 1984, by applying the law in effect
at the time such complaints were filed so as not to deprive such tenants
of their rights to have the lawful stabilized rent determined from the
June 30, 1974 base date and so as not to deprive tenants whose
overcharge claims accrued more than four years prior to April 1, 1984 of
the right to recover such overcharges. In such cases, if the owner
failed to produce the required rent records, the lawful stabilized rent
would be determined pursuant to the default procedure approved by the
Court of Appeals in 61 Jane Street Associates v. CAB, 65 N.Y.2d 898, 493
N.Y.S. 2d 455 (1985).
However, it has recently been held in the case of J.R.D. Mgmt. v.
Eimicke, 148 A.D.2d 610. 539 N.Y.S. 2d 667 (App. Div. 2d Dept., 1989),
motion for leave to reargue or for leave to appeal to the Court of
Appeals denied ( App. Div. 2d Dept., N.Y.L.J., June 28, 1989. p.25,
col.1), motion for leave to appeal to the Court of Appeals denied (Court
of Appeals, N.Y.L.J., Nov. 24, 1989, p.24, col.4), motion for leave to
reargue denied (Court of Appeals, N.Y.L.J., Feb. 15, 1990, p.25, col.1),
that the Law in effect at the time of the determination of the
administrative complaint rather than the Law in effect at the time of
the filing of the complaint must be applied and that the DHCR could not
require an owner to produce more than four years of rent records.
Since the issuance of the decision in JRD, the Appellate Division, First
CD 210141 RO
Department, in the case of Lavanant v. DHCR, 148 A.D.2d 185, 544
N.Y.S.2d 331 (App. Div. 1st Dept. 1989), has issued a decision in direct
conflict with the holding in JRD. The Lavanant court expressly rejected
the JRD ruling finding that the DHCR may properly require an owner to
submit complete rent records, rather than records for just four years,
and that such requirement is both rational and supported by the Law and
legislative history of the Omnibus Housing Act.
Since in the instant case the subject dwelling unit is located in the
Second Department, the DHCR is constrained to follow the JRD decision in
determining the tenant's overcharge complaint, limiting the requirement
for rent records to April 1, 1980.
In this case, an examination of the rental history from April 1, 1980,
discloses that the April 1, 1980 rent was $245.00. The evidence shows
that this rent was raised on March 1, 1982 to $285.82. The tenant-
supplied figure of $385.82 was clearly incorrect. The Administrator
erred is using the tenant-supplied figure in the calculations.
However, a small overcharge did occur as indicated on the attached
calculation chart which is made part and parcel of this order.
Based on the foregoing, a total overcharge of $65.68 occurred from
March 1, 1982 to February 28, 1985 including interest on the overcharge
occurring on and after April 1, 1984 and excess security.
Because this determination concerns lawful rents only through
February 28, 1985, the owner is cautioned to adjust subsequent rents to
an amount no greater than that determined by this order plus any lawful
increases, and to register any adjusted rents with this order and
opinion being given as the explanation for the adjustment.
If the owner has already complied with the Rent Administrator's order
and there are arrears due to the owner as a result of the instant
determination, the tenant shall be permitted to pay off the arrears in
twelve equal monthly installments. Should the tenant vacate after the
issuance of this order or have already vacated, said arrears shall be
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,
not in excess of twenty percent of the overcharge per month may be
offset against any rent thereafter due the owner.
THEREFORE, in accordance with the Appellate Division ruling in JRD, it
ORDERED, that this petition for administrative review be, and the same
hereby is, granted in part, and, that the order of the Rent
Administrator be, and the same hereby is, modified in accordance with
this order and opinion. The amount of the rent overcharge through
February 28, 1985 is $65.68.
CD 210141 RO
JOSEPH A. D'AGOSTA
Acting Deputy Commissioner