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.CD210151RO
: DRO DOCKET NO.K3103616R
WEBSTER REALTY ASSOC. TENANT: ROBERTA GIBBS
ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On April 13, 1988, the above-named petitioner-owner filed a
Petition for Administrative Review against an order issued on
March 9, 1988, by the Rent Administrator, 92-31 Union Hall Street,
Jamaica,, New York, concerning the housing accommodations known as
312 Webster Avenue,Brooklyn, New York, Apartment No. B-1
wherein the Rent Administrator determined that the owner had
overcharged the tenant.
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 provisions 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 Administrative Appeal is being determined pursuant to the
provisions of Section 42A of the former Rent Stabilization Code.
The issue herein is whether the Rent Administrator's order was
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 on March
23, 1984 of a rent overcharge complaint by the tenant.
In response to the tenant's complaint, the owner stated in
substance that it had taken over the building in 1986 and that the
former owner had not provided any leases. The owner did not
submit a rental history.
In the order here under review, the Rent Administrator
determined that due to the owner's failure to submit a complete
rental history, the owner had collected a rent overcharge of
$4,525.50 including excess security and interest on that portion of
the overcharge occurring on and after April 1, 1984.
In this petition, the owner contends in substance that
the order is in error because the apartment used to compute the
legal rent contains only 3 rooms whereas the apartment at issue has
4 rooms, the owner does not understand the default procedure and the
owner is waiting for a copy of the MBR folder.
In answer to the owner's petition, the tenant stated in
substance that the order is correct.
The Commissioner is of the opinion that this petition should be
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 to date and produce them to the DHCR upon
demand. If the apartment was decontrolled from the Rent Control Law
after June 30, 1974, the owner must provide satisfactory documentary
evidence of the apartment's date of decontrol and submit a rental
history from that date.
In the instant case, the owner has not provided a complete
rental history as mandated by Section 42A. Accordingly, the Rent
Administrator's order establishing the lawful stabilization rent
utilizing the Section 42A default procedure and finding a rent
overcharge was warranted.
Where a rent history is not provided, the lawful stabilized
rent is established by selecting the lowest of three rents: 1) the
lowest stabilized for the same size apartment, 2) the complainant's
rent minus a guideline or 3) the rent paid by the prior tenant in
the subject apartment. In the instant case, method number 2
provided the lowest amount which was computed in the following
manner: subtracting 17 1/2 % (12 1/2% plus 5% vacancy allowance)
from the complainant's rent of $195.00 yields $165.96 which was
established as the legal rent for 1976.
The Commissioner has reviewed registration records which shows
that apartment A-1, the apartment used in the default procedure as
the lowest stabilized rent has the same number of rooms as the
instant apartment. In any event, A-1's rent was not used to
establish the lawful stabilized rent of the subject apartment since
method 2 provided the lowest rent as explained above.
The owner's comment with respect to the MBR folder is not
germane to this proceeding.
The owner is directed to reflect the findings and
determinations made in this order on all future registration
statements, including those for the current year if not already
filed, citing this order as the basis for the change. Registration
statements already on file, however, should not be amended to
reflect the findings and determinations made in this order. The
owner is further directed to adjust subsequent rents to an amount no
greater than that determined by this order plus any lawful
The Commissioner has determined in this Order and Opinion that
the owner collected overcharges of $4,525.50 . This Order may, upon
expiration of the period for seeking review of this Order and
Opinion pursuant to Article Seventy-eight of the Civil Practice Law
and Rules, be filed and enforced as a judgment or not in exces of
twenty percent per month of the overcharge may be offset against any
rent thereafter due the owner. Where the tenant credits the
overcharge, the tenant may add to the overcharge, or where the
tenant files this Order as a judgment, the County Clerk may add to
the overcharge, interest at the rate payable on ajudgment pursuant
to section 5004 of the Civil Practice Law and Rules from the
issuance date of th Rent Administrator's order to the issuance date
of the Commissioner's Order.
THEREFORE, in accordance with the provisions of the Rent
Stabilization Law and Code, it is
ORDERED, that this petition for administrative review be, and
the same hereby is, denied, and, that the order of the Rent
Administrator be, and the same hereby is, affirmed.
JOSEPH A. D'AGOSTA