CF410201RT
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.CF410201RT
: DRO DOCKET NO.L3114766RT
BRIAN McBRINN & VIRGINIA CREIGHTON OWNER: C.I.D. ASSOCIATES
PETITIONER :
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On June 3, 1988, the above-named petitioner-tenants filed a
Petition for Administrative Review against an order issued on May 4,
1988, by the Rent Administrator, 92-31 Union Hall Street, Jamaica,
New York, concerning the housing accommodations known as 95 St.
Marks Place, New York, New York, Apartment No. 5, wherein the Rent
Administrator determined that the owner had overcharged the tenants.
The Administrative Appeal is being determined pursuant to the
provisions of Section 2526.1 of the Rent Stabilization Code.
The issue herein is whether the Rent Administrator's order was
warranted.
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 tenants' filing
of a rent overcharge complaint and a fair market rent adjustment
application in March, 1984. The tenants stated that they had
commenced occupancy of the subject apartment in November, 1979 at a
rental of $225.00 per month.
In response to the tenants' complaint, the owner submitted a
complete rental history for the subject apartment up to occupancy by
the tenants herein. The tenants were afforded an opportunity to
update their rental history and stated that their rent had been
increased to $247.50 pursuant to a lease commencing January 1, 1983.
In Order Number CDR 33,276, the Rent Administrator determined
that the tenants had been overcharged in the amount of $520.71
through October 31, 1986 and determined that the lawful
stabilization rent for the subject apartment was $241.41 effective
November 1, 1982 through October 31, 1986.
In this petition, the tenants allege in substance that they
signed a new lease on November 1, 1986 and that the lawful
stabilization rent and amount of rent overcharge due to such new
lease was not indicated in the Rent Administrator's order. Further
CF410201RT
the tenants allege that two months security was collected and that
they would like the extra month's security returned.
The Commissioner is of the opinion that this petition should be
denied.
An examination of the record indicates that the tenants were
afforded an opportunity to update their rental history in the
proceeding before the Rent Administrator and did not submit the
November 1, 1986 lease information when it became available prior to
the issuance of the Rent Administrator's order. Further the tenants
have not submitted a copy of the November 1, 1986 lease along with
their appeal. Accordingly, the Rent Administrator's order correctly
ended with the rental history through October 31, 1986 and a further
update is not warranted. With regard to the contention about the
refund of an extra security deposit, the Commissioner notes that
this item was not included in the tenants' original overcharge
complaint or in the fair market rent adjustment application and
cannot be considered for the first time on appeal since this is not
a de novo 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
increases.
The Commissioner has affirmed in this Order and Opinion that
the owner collected overcharges of $520.71. 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, not in
excess 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 interest at the
rate payable on a judgment pursuant to Section 5004 of the Civil
Practice Law and Rules from the issuance date of the Rent
Administrator's Order to the issuance date of the Commissioner's
Order.
CF410201RT
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.
ISSUED
JOSEPH A. D'AGOSTA
Deputy Commissioner
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