CG 110087 RO; CG 110090 RT
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
APPEALS OF DOCKET NOS.: CG 110087 RO
CG 110090 RT
DRO DOCKET NO.: Q 3120663 R
RICHARD ALBERT-OWNER CDR 33,534
LOUIS LINDER-TENANT,
TENANT: LOUIS LINDNER
PETITIONERS
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ORDER AND OPINION DENYING OWNER'S PETITION
FOR ADMINISTRATIVE REVIEW
AND
GRANTING TENANT'S PETITION FOR ADMINISTRATIVE REVIEW
IN PART
On July 19, 1988, the above-named petitioner-owner filed a Petition
for Administrative Review against an order issued on June 16, 1988,
by the Rent Administrator, 10 Columbus Circle New York New York,
concerning the housing accommodations known as 94-03 222nd Street,
Queens, New York, Apartment No. 3C, wherein the Rent Administrator
determined that the owner had overcharged the tenant.
On July 13, 1988, the above-named petitioner-tenant filed a
Petition for Administrative Review against the aforementioned
order. These petitions are being consolidated for disposition
herein.
The Administrative Appeals are 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
issues raised by the administrative appeals.
This proceeding was originally commenced by the filing of a rent
overcharge complaint by the tenant in March 1984.
The owner was served with a copy of the tenant's complaint and
submitted a complete rental history as required. The owner stated
in substance that the tenant was the first rent stabilized tenant
after vacancy decontrol in March 1978. The owner submitted a copy
of the Landlord's Report of Statutory Decontrol (R42) as
substantiation of the base date.
CG 110087 RO; CG 110090 RT
The Rent Administrator served the owner with a copy of the Fair
Market Rent Appeal Notice and afforded the owner the opportunity to
submit comparability data to be used in establishing the Initial
Legal Regulated Rent.
In Order Number 33,534, the Rent Administrator determined that the
initial rent charged the tenant did not exceed the Fair Market Rent
and dismissed the tenant's Fair Market challenge. The Rent
Administrator determined that subsequently the tenant had been
overcharged in the amount of $10.90 from April 1, 1983 thru March
31, 1985.
In the owner's petition, the owner alleges in substance that the
Rent Administrator erred in stating that the owner did not respond.
The owner cited its submission of December 31, 1984. The owner
also contends that the tenant failed to allege that the rent
exceeded the fair market rent; that the current law does not oblige
the owner to produce records beyond 4 years or calculate
overcharges prior to April 1, 1980; that the calculation system was
defective in that it allowed the tenant to pay $32.56 less than the
Fair Market Rent but calculated an overcharge of $0.44 in excess of
the lawful rent which would be eliminated if the Rent Administrator
rounded to the nearest dollar as other agencies do; that it was
unfairly denied an opportunity for a hearing; and that the tenant
is harassing the owner by cooperating with another tenant and in
violation of a court stipulation.
In answer to the owner's petition, the tenant stated in substance
that the owner's petition should be denied as unsubstantiated and
the Rent Administrator's order is warranted.
In the tenant's petition, the tenant contends in substance that he
had provided updated rental data to the Rent Administrator and
therefore the order should be modified to adjust the overcharge and
monthly rent by the inclusion of the updated rental data.
The Commissioner is of the opinion that the owner's petition should
be denied and the tenant's petition granted in part.
The Rent Administrator was correct in processing the tenant's
complaint of overcharges as a Fair Market Rent Appeal (hereafter
FMRA) based on the tenant's status as the first rent stabilized
tenant, a fact corroborated by the owner's submission of the Report
of Statutory Decontrol (R42).
Although the tenant did not specifically state in his overcharge
complaint that his initial rent was in excess of the fair market
rent, he stated that the owner failed to submit a complete rental
history so that the tenant had no way of knowing whether he was the
initial rent stabilized tenant.
The Rent Administrator was correct in stating in the facts of the
order that the owner failed to respond with the necessary data.
Although the owner submitted the December 31, 1984 response as
alleged, the owner did not submit a response to the FMRA notices
served on March 11, 1988 and May 18, 1988 which afford the owner
the opportunity to submit comparable apartments. In any event such
submission by the owner would not have been necessary as the
CG 110087 RO; CG 110090 RT
Administrator determined that the initial stabilized rent did not
exceed the fair market rent based on the Special Guideline alone.
The owner is correct in that current Law limits the owner's
obligation to provide rent records to a period not more than 4
(four) years prior to the most recent rent registration and
concomitantly established a four year limitation on the calculation
of rent overcharges. This provision however does not apply to FMRA
proceedings. Moreover, in the instant order the question is moot
because the Rent Administrator's finding of overcharge do not
extend beyond the 4 year limitation period.
The owner's contention that the overcharge was due to the accepted
practice of rounding sums to whole dollars is without merit. There
is no provision in the Rent Stabilization Law which permits the
owner to collect a rent in excess of the lawful stabilization rent
by means of dollar rounding.
The owner's contention that the calculation system is defective
because it permitted the collection of a rental below the lawful
stabilization rent by $32.56 but disallowed a rental in excess of
only $0.44 is without merit. The increases permitted by the Rent
Stabilization Law and Code are maximum rents which may not be
exceeded; however, nothing therein prohibits the owner from
charging less than the maximum permissible rent. (Collingwood
Enterprises v. Gribetz NYLJ, April 24, 1975, p.17, col.6 Sup. Ct.)
Fine, J).
The owner's contention that it was unfairly denied a hearing is
without merit. During the processing of the complaint there
existed no factual dispute which warranted a hearing.
The remainder of the owner's contentions with regard to the
violation of court stipulations and harassment are without merit.
There is no evidence that the complainant was a party to the
proceedings cited by the owner.
With regard to the tenant's petition, an examination of the record
in this case discloses that the tenant provided updated rental data
to the Rent Administrator which was not considered in calculating
the overcharge.
Accordingly, the Commissioner has updated the adjusted lawful
stabilization rent and computed the overcharge through June 30,
1988, the last day of the month in which the Rent Administrator's
order was issued, as set forth on the amended Rent Calculation
Chart attached hereto and made a part hereof.
Because this determination concerns lawful rents only through June
30, 1988, the owner is cautioned to adjust subsequent rent 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.
THEREFORE, in accordance with the provisions of the Rent
Stabilization Law and Code, it is
CG 110087 RO; CG 110090 RT
ORDERED, that the owner's petition for administrative review be,
and the same hereby is, denied, that the tenant's petition be, and
the same hereby is granted in part and, that the order of the Rent
Administrator be, and the same hereby is, affirmed as modified in
accordance with this order and opinion. The amount of the rent
overcharge through June 30, 1988 is $30.40.
ISSUED
JOSEPH A. D'AGOSTA
Acting Deputy Commissioner
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