CK 410021 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.: CK 410021 RO
Sutton Realty Company, DISTRICT RENT ADMINISTRATOR
DOCKET NO.: AE 410232 R
PETITIONER
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ORDER AND OPINION GRANTING ADMINISTRATIVE APPEAL, IN PART AND
MODIFYING COMMISSIONER'S PRIOR ORDER AND OPINION
PURSUANT TO COURT JUDGMENT
On November 3, 1988 the above-named petitioner-owner filed an
Administrative Appeal against an order issued on September 29,
1988 by the District Rent Administrator, 92-31 Union Hall Street,
Jamaica, New York, concerning the housing accommodations known as
320 East 52nd Street, New York, New York, Apartment 9A.
Subsequent thereto, the petitioner filed a petition in the
Supreme Court pursuant to Article 78 of the Civil Practice Law
and Rules requesting that the "deemed denial" of its
administrative appeal be annulled.
On July 17, 1989, an order was signed by Justice Leland DeGrasse
remitting the proceeding to the Division for an expeditious
determination of the petitioner's administrative appeal.
On September 14, 1989, the Commissioner issued an order and
opinion denying the petitioner's administrative appeal and
affirming the District Rent Administrator's order and
determination that the tenant had been overcharged a total,
including excess security and accrued interest, of $6,353.48
during the period from March 15, 1986 through September 30, 1988.
Subsequent thereto, the petitioner filed a petition in the
Supreme Court pursuant to Article 78 of the Civil Practice Law
and Rules requesting that the order and opinion of the
Commissioner be annulled in view of the fact that the tenant had
vacated the subject apartment and had not paid any rent
subsequent to January, 1987. Such contentions were raised for
the first time in the administrative proceedings in the
petitioner's administrative appeal.
On April 24, 1990, an order and judgment was signed by Justice
Irma V. Santaella denying the petitioner's Article 78 petition
and dismissing the proceeding based, in part, upon a finding that
the petitioner's contentions improperly were based, at least in
part, on matters not raised before the District Rent
Administrator, and upon information not in the record before the
District Rent Administrator. The petitioner took an appeal
against the order and judgment of Justice Santaella.
CK 410021 RO
By a decision and order entered on June 18, 1991, the Appellate
Division reversed Justice Santaella's order and judgment and
granted the petitioner's petition to the extent of remanding the
proceeding to the Division for recalculation of the overcharge
assessment in light of the fact that the petitioner never
received any rent from the tenant after January 1987. The
Appellate Court agreed that the petitioner had failed to
demonstrate that the Division's calculation of the rent
overcharge per se was either arbitrary or capricious.
In accordance with the specific directive of the Appellate
Division, the Commissioner is of the opinion that the owner's
administrative appeal should be granted, in part, and the
Commissioner's prior order and opinion should be modified, as
provided herein below.
The District Rent Administrator properly determined that the
lawful stabilization rent for the subject apartment was $919.88
during the lease term from March 15, 1986 through March 31, 1986.
The rent charged under said lease was $1,100.00. During the ten
and one-half month period from March 15, 1986 through January 31,
1987, the owner collected an overcharge of $1,891.26.
Adding accrued interest of $115.21 plus excess security of
$180.12 results in a total to be refunded of $2,186.59.
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 as a
judgment.
THEREFORE, in accordance with the decision and order of the
Appellate Division and the provisions of the Rent Stabilization
Law and Code, it is
ORDERED, that this administrative appeal be, and the same hereby
is, granted in part, and that the prior order of the Commissioner
be, and the same hereby is, modified, to provide that the total
overcharge to be refunded is $2,186.59. The Commissioner's prior
order and opinion is hereby affirmed in all other respects.
ISSUED:
JOSEPH A. D'AGOSTA
Deputy Commissioner
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