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
APPEAL OF ADMINISTRATIVE REVIEW
DOCKET NOS: CJ 410042-RO
D.R.O. DOCKET NO:
TC-08133-G; CDR 34035
Daisy Rosenberg (authorized ARTICLE 7-A
representative of Maurice Abelson), ADMINISTRATOR:
Murray Schactman
OWNER: Maurice Abelson,
H-O Realty Corporation
TENANT: Eric Weitz
PETITIONER
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On October 19, 1988 the above named petitioner filed a Petition
for Administrative Review against an order issued on September
14, 1988 by the District Rent Administrator, 10 Columbus Circle,
New York, New York concerning housing accommodations known as
Apartment 15 at 66 West 10th Street, New York, New York wherein
the District Rent Administrator determined that the tenant had
not been overcharged, and that the lawful stabilization rent
commencing September 1, 1983 was the $355.48 rent stated in the
lease commencing that date.
The Commissioner notes that this proceeding was filed 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
provision 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 issue in this appeal is whether the District Rent
Administrator's order was warranted.
Docket No. CJ 410042-RO - 2 -
The applicable sections of the Law are Section 26-516 of the Rent
Stabilization Law and Section 2526.1(a) of the current Rent
Stabilization Code.
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 in
January, 1984 of a rent overcharge complaint by the tenant, in
which he stated that he had commenced occupancy on September 1,
1983 at a rent of $355.48 per month.
The owner was served with a copy of the complaint and was
requested to submit rent records to prove the lawfulness of the
rent being charged. In answer to the complaint, the owner
submitted a complete rental history, including invoices for
improvements and new equipment, from the base date as required.
In an order issued on September 14, 1988 the District Rent
Administrator determined that there had been no overcharge as of
the end of the complainant's initial lease, and that the lawful
stabilization rent was the $355.48 stated in the lease.
In this petition, the representative of the owner contends in
substance that the court order appointing the Article 7-A
Administrator directed him to charge the maximum legal
residential rents; that Item No. 7 of that order provided that
his fee (5% of the rents collected) was subject to his compliance
with the order and without prejudice to the rights of any party;
that the owner therefore stated in his answer to the tenant's
complaint: "[p]lease set the rent for this apartment. Owner and
7A Administrator disagree on the rent Tenant should pay"; and
that the lawful stabilization rent in the tenant's initial lease
should be established at $407.00, the maximum legal amount that
the 7-A Administrator could have charged and was indeed mandated
to charge by the court order appointing him.
The Commissioner is of the opinion that this petition should be
denied.
It has long been DHCR policy that when the rent actually charged
is less than the rent with maximum permitted increases, the
lawful stabilization rent is limited to the rent charged. The
petitioner is claiming that the court order overrules that
policy. It is not necessary to decide whether the court had the
power to do that in its order appointing the 7-A Administrator,
because the Court order actually did not even purport to do that,
as can be seen by reading the ending of Item 7, which ending was
omitted by the petitioner. The 7-A Administrator's fee was
authorized "without prejudice to the rights of any party hereto
Docket No. CJ 410042-RO - 3 -
or the Administrator to move the Court for a modification of said
fee, either permanent or temporary." [Emphasis added to words
omitted by the petitioner.] This relates only to the 7-A
Administrator's fee, not to any entitlement of the owner to
lawfully charge a higher rent than stated in the tenant's lease
and charged the tenant.
This determination is without prejudice to any rights which the
owner may have against the 7-A Administrator in a court of
competent jurisdiction.
THEREFORE, in accordance with the Rent Stabilization Law and
Code, it is
ORDERED, that this petition be, and the same hereby is, denied
and that the District Rent Administrator's order be, ant the same
hereby is, affirmed. The lawful stabilization rent is $355.48
per month in the lease from September 1, 1983 to August 31, 1986.
ISSUED:
ELLIOT SANDER
Deputy Commissioner
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