CA210355RO
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.CA210355RO
: DRO DOCKET NO.ZK005965R
Ralph D. Stroffolino TENANT:Helen Helienek
& Luise Helienek
PETITIONER :
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ORDER AND OPINION GRANTING IN PART PETITION FOR ADMINISTRATIVE
REVIEW
On January 20, 1988, the above-named petitioner-owner filed a
Petition for Administrative Review against an order issued on
December 30, 1987 by the Rent Administrator, 92-31 Union Hall
Street, Jamaica, New York, concerning the housing accommodation
known as 2078 Bay Ridge Parkway, apartment 1B, Brooklyn, New York
wherein the Administrator determined that the owner had overcharged
the tenant.
The Commissioner has reviewed all of the evidence of record and has
carefully considered that portion of the record relevant to the
issues raised in the administrative appeal.
This proceeding was commenced on December 4, 1985 when the tenants
filed a complaint of rent overcharge. The tenants stated that they
had commenced occupancy on October 1, 1985 at a rent of $400.00 per
month. The tenants also stated that although the lease refers to
a new stove, the owner had removed the new stove and replaced it
with an old stove from another apartment.
On reply, the owner stated, among other things, that he had given
the tenants a preferential rent and had installed a new stove. The
owner submitted a complete rental history as well as a receipt and
tenant consent for a new stove.
In the order issued on December 30, 1987, the Administrator
determined that the tenant had been overcharged and directed the
owner to refund an overcharge of $1178.80 inclusive of excess
security and accrued interest.
In his appeal, the owner contends that there are four errors in the
Administrator's rent calculations:
1. The rent in the October 1, 1984 lease should be $377.22;
CA210355RO
2. The Administrator did not calculate a vacancy increase for the
October 1, 1985 lease;
3. The Administrator failed to include an increase for a new
stove;
4. The tenant paid a lesser rent ($400.00) than the administrator
credited.
In reply, the tenant contends that the new stove was installed in
another apartment, and that the owner's appeal should be denied.
The Commissioner is of the opinion that this petition should be
granted in part.
The Commissioner notes that the rent charged ($375.00) in the
October 1, 1984 lease was less than could have been charged.
Under rules followed by the DHCR in such instances, the legal
stabilization rent is limited to the amount actually charged.
Pursuant to Rent Guidelines Board Order #17, if a vacancy allowance
was collected under Board Order #16, a vacancy allowance is not
permitted under #17. Since the record indicates that the owner
collected a vacancy increase in the lease of October 1, 1984, the
Administrator did not err in excluding a vacancy allowance.
With respect to an increase for a new stove, the Commissioner finds
that the owner has not established that the increase was warranted.
Examination of the record indicates that the owner did not address
the tenant's allegation stated in the complaint. The receipt and
check submitted by the owner show another apartment. Accordingly,
the Administrator did not err in excluding the increase.
However, the Commissioner finds that the overcharge to be refunded
should be modified. The record-the tenant's statement in the
complaint and the lease rider-confirms that the rent actually
charged was $400.00. There is no corroborating evidence of the
owner's allegation that the rent charged under the October 1, 1987
lease was $430.00. Accordingly, the Commissioner finds that that
part of the rent calculation chart is correct. The chart is
amended as follows:
Lease period Actual Rent charged Lawful Stabilization Rent
10/1/85 to 9/30/87 $400.00 $399.38
Overcharge
$.62 x 24 months + Interest $15.73 Total Overcharge
Including Interest and
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excess security= $216.43
The owner is directed to refund the overcharge to the tenants c/o
Legal Aid Society, 1685 E. 15th Street Brooklyn, New York, 11229.
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 is permitted to pay off the
arrears in 12 equal months installments. Should the tenant vacate
after the issuance of this order or have already vacated, said
arrears shall be payable immediately.
Since the record indicates that the tenants have vacated the
subject apartment, upon the expiration of the period in which the
owner may institute an Article 78 proceeding pursuant to the Civil
Practice Law and Rules, this order may be filed and enforced in the
same manner as a judgment.
THEREFORE, in accordance with the provisions of the Rent
Stabilization Law and Code, it is
ORDERED, that this petition be, and the same hereby is, granted in
part, and the Administrator's order be, and the same hereby is,
modified in accordance with this order and opinion.
ISSUED:
JOSEPH A. D'AGOSTA
Deputy Commissioner
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