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. CF210126RO
: DISTRICT RENT OFFICE
Michael Herman and Marton Lob, DOCKET NO. K3101738R/T
TENANT: Jeanette Chervoni
ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
AND REVERSING ADMINISTRATOR'S ORDER
On June 13, 1988, the above-named petitioner-owner filed a Petition for
Administrative Review against an order issued on May 13, 1988, by the
Rent Administrator concerning the housing accommodations known as 1031
Lorimer Street, Brooklyn, New York, Apartment No. 16, wherein the Rent
Administrator determined that the tenant had been overcharged.
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 appeal.
This proceeding was commenced by the filing of a fair market rent appeal
and a rent overcharge complaint by the tenant on March 31, 1984 with the
New York City Conciliation and Appeals Board, one of the predecessor
agencies to the DHCR.
On September 19, 1985, the owner submitted the following documents,
among other things, in response to the tenant's fair market rent appeal:
his statement of the rental history of the subject apartment; a rent
ledger for the period January, 1977 through April, 1978, which indicates
a vacancy in June,1977 and a prior stabilized tenancy commencing in July
or August, 1977, at a rental of $200.00 per month. (It is unclear
whether the July, 1977 notation refers to rent for that month or
In response to a DHCR request for additional information, the owner, on
September 22, 1986, resubmitted the statement of the apartment's rental
On March 31, 1988, the owner was sent a fair market rent appeal package.
In response submitted on April 26, 1988, the owner again submitted a
rent history and submitted a copy of the tenant's lease commencing June
1, 1978 and expiring May 31, 1980 at a monthly rent of $225.00.
In Order Number 33,372, the Administrator found the tenant ineligible to
file a fair market rent appeal since she was not the first tenant to
occupy the apartment following vacancy decontrol. The Administrator
also found that since the owner had failed to submit a complete rental
history, the legal regulated rent would be established by using the
DHCR's Section 42A default rent computation. The Administrator
established the lawful regulated rent as of June 1, 1983 at $248.97 per
month, and computed total overcharges in the amount of $2062.61
including excess security and accrued interest from April 1, 1984.
In its petition for administrative review, the owner alleges that the
tenant requested a two-year lease commencing June 1, 1978, and that he
specially reduced the rent for the first year of that lease to $210.00,
because of the tenant's hardship. The owner submits a rental history
along with the following documents: leases for the complainant tenant
for the following periods: June 1, 1978 to May 31, 1980; February 1,
1980 to January 31, 1983; February 1, 1986 to January 31, 1988; and
February 1, 1988 to January 31, 1990; and the lease of the prior tenant
from June 15, 1977 to June 14, 1978 at $200.00 per month. The owner
contends that due to a fire his lease for the period February 1, 1983 to
January 31, 1986 was lost and that the tenant has a copy of that lease.
The Commissioner is of the opinion that this petition for administrative
review should be granted.
Section 25(a) of the Rent Stabilization Code provides that a fair market
rent appeal application may be filed by the tenant of an apartment which
was subject to rent control or rent stabilization prior to July 1, 1971
and was vacated between January 1, 1974 and June 30, 1974, both dates
inclusive, or of an apartment which was subject to rent control on June
30, 1974 and vacated thereafter.
The rent ledger for 1977 and 1978, submitted by the owner during the
proceeding before the Administrator, indicates a prior stabilized
tenancy commencing shortly after a June, 1977 vacancy. The lease
submitted of the prior stabilized tenant (submitted for the first time
at PAR) for the period June 15, 1977 through June 14, 1978 corroborates
that tenancy. DHCR records, of which the DHCR is deemed to be on
notice, indicate the filing of a decontrol report in December, 1977 for
a tenancy commencing in August 1977. Based on the rent ledger and DHCR
records which were available to the Administrator, a fair market rent
appeal would have been appropriate.
Pursuant to Special Guideline No. 8, which is applicable to leases
commencing between July 1, 1976 and June 30, 1977, the 1976 Maximum Base
Rent of $193.36 multiplied by 15% results in a fair market rent of
$222.36. Since the prior tenant's rent does not exceed the fair market
rent, it is the lawful base rent for the next tenant. (It is noted that
the result would be the same, that is, the initial stabilized rent would
be found to be lawful, even if the prior tenant's tenancy commenced in
July or August rather than June of 1977.) The lawful stabilized rent is
recalculated on the attached rent calculation chart, which is hereby
made a part of this order. The Commissioner notes that although the
initial stabilized rent was lawful, $80.00 excess rent (reflected in the
rent chart appended hereto) resulted from the owner's improperly
increasing the tenant's renewal lease rent for the instant housing
accommodation on February 1, 1980, prior to the expiration of the lease
term June 1, 1978 to May 31, 1980.
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 shall be permitted to pay off the arrears in
twenty four equal monthly installments. Should the tenant vacate after
the issuance of this order or have already vacated, said arrears shall
be payable immediately.
THEREFORE, pursuant to the Rent Stabilization Law and Code, it is
ORDERED, that this petition be, and the same hereby is granted; and that
the Administrator's order be, and the same hereby is, modified in
accordance with this order and opinion.
JOSEPH A. D'AGOSTA