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 NOs. CF420299RO
Wyndham Realty Co., Owner & : CG420058RT
Lee Buchwald, Tenant DRO ORDER NOs.
L3110578R- TC81141G
PETITIONERS : BG420046RP
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ORDER AND OPINION DENYING OWNER'S AND TERMINATING TENANT'S
PETITIONS FOR ADMINISTRATIVE REVIEW
On June 15, 1988, the above named petitioner-owner filed a Petition
for Administrative Review against an order issued on June 6, 1988,
by a Rent Administrator concerning housing accommodations known as
Apartment 14-H, 145 Fourth Avenue, New York, New York, wherein the
Rent Administrator determined that there had been an overcharge and
ordered a refund.
On July 11, 1988 the above-named petitioner-tenant filed a PAR
against the same order.
The Commissioner notes that this proceeding was initiated 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 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.
The tenant (Lee E. Buchwald) commenced this proceeding by filing
two overcharge complaints with the New York City Conciliation and
Appeals Board, the predecessor of the DHCR, on December 28, 1983.
The complaints were given two Docket Numbers but were processed as
a single proceeding by the administrator.
CF420299RO
CF420299RO
In Order Number CDR 13,000 issued on February 6, 1986, the Rent
Administrator determined that the submitted lease history was
incomplete and therefore established the lawful regulated rent and
computed overcharges therefrom. Treble damages were imposed,
bringing the total overcharge, with excess security, to $16,852.10.
Subsequent to the filing of a Petition for Administrative Review by
the owner, in an Order and Opinion issued on July 14, 1987 under
Docket Number ARL08319L, the Commissioner determined that the owner
had substantially complied with the Administrator's request for the
lease history and that the finding of default was revoked. The
proceeding was then remanded for further processing. Additionally,
the Administrator was directed to determine the adequacy of the
owner's proof of payment for an air conditioner. The Opinion also
rejected as without merit the owner's claim that the tenant had no
standing to file the complaint because, as the son of the tenant
who was named on the lease, the complaining tenant was only an
"occupant" of the apartment.
The owner thereafter filed another petition for administrative
review (Docket Number CD420019RO) in which the owner asserted that
there were errors in the Commissioner's July 14, 1987 opinion. By
order issued on June 2, 1988, it was found that a petition for
Administrative Review could not be appealed by the filing of
another petition for administrative review and the owner's petition
under Docket Number CD420019RO was dismissed.
In the order issued on remand on June 6, 1988, the Administrator
recalculated the lawful rent based on the lease history submitted
by the owner, and determined overcharges of $5,344.19, less arrears
of $2,228.90, resulting in a net overcharge of $3,115.29 including
interest and excess security. The Administrator also determined
that the owner had sufficiently proven the cost of the air
conditioner, and approved a rent increase of $13.34 per month
(1/40th total cost of $533.68).
In its petition of that order and a supplement to the petition, the
owner contends that the order on remand failed to mention or
consider the owner's PAR against the Commissioner's prior opinion
(ARL08319-L), wherein the owner reiterated its objection to the
finding that the tenant had standing to file the complaint; that
the decision in the case of J.R.D. Mgt. v. Eimicke governs this
case and mandates that the law in effect at the determination of
the complaint must be applied, and that, as a result, the owner was
only required to submit records going back to June 6, 1984, which
is 4 years prior to the most recent registration statement; and
finally, that the Administrator should have added interest on the
arrears owed to the owner.
In his petition, the tenant requested that the order should be
CF420299RO
modified to award the tenant attorney's fees, and that treble
damages should have been assessed because the owner had not
established that the overcharges were not willful.
In a letter dated June 24, 1991, the tenant's attorney notified the
DHCR that the tenant wished to withdraw his petition.
The Commissioner is of the considered opinion that the owner's
petition should be denied and that the tenant's petition should be
terminated.
Section 2529.1(a) of the Rent Stabilization Code provides that a
Petition for Administrative Review may be filed by a party to the
proceeding against an order issued by a rent administrator.
Insofar as the owner filed a petition for administrative review
against the Commissioner's Order and Opinion Docket Number
ARL08319L, such petition was inappropriate for obtaining review of
the Commissioner's order and was properly dismissed. The instant
order, representing a final order on all issues raised thoughout
the proceeding, affords the owner a full opportunity for review of
all such issues in an Article 78 proceeding.
The Appellate Term case mentioned by the owner, Festa, Klein and
Festa v. Leshin et al, is given no legal citation. Even if the
owner's statement of the facts of that case were accepted, however,
it is distinguishable from the instant case. As summarized by
petitioner, Festa concerned a signatory tenant who had once
actually lived in the apartment but who vacated, without notice to
the owner, leaving his brother as sole occupant. The owner states
that the court found that the owner had not waived objection to the
brother's occupancy by accepting the rent from him. In the instant
case, however, the complainant was listed by the owner on the lease
as an "occupant" of the apartment, while his father was listed, and
did sign, as the tenant. The owner does not dispute that the
complainant's father never took occupancy and that the complainant
lived in the apartment from the commencement of the lease. The
fact that the complainant was not issued a lease in his own name
until later does not contravene his actual status as tenant from
the commencement of the tenancy, which was known to and accepted by
the owner, who thereby waived any objection to that relationship.
The Commissioner therefore finds that the complainant had standing
to file an overcharge complaint.
The owner's contention that the ruling in the case of J.R.D. Mgt.
CF420299RO
v. Eimicke must be applied is also incorrect because the subject
premises is located in the First Department of the Appellate
Division, whereas the J.R.D. case only has binding effect in the
Second Department.
With regard to the owner's demand for interest on rent arrears owed
by the tenant, the Rent Stabilization Code has no provision for
granting such an award to the owner.
Insofar as the tenant has submitted a letter of withdrawal of his
petition, the tenant's petition is terminated.
The Commissioner has determined in this Order and Opinion that the
owner collected overcharges of $3115.29. 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 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, or where the
tenant files this Order as a judgment, the County Clerk 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.
THEREFORE, pursuant to the Rent Stabilization Law and Code, it is
ORDERED, that the owner's petition be, and the same hereby is
denied; that the tenant's petition be, and the same hereby is
terminated and that the Administrator's order be, and the same
hereby is affirmed.
ISSUED:
JOSEPH
JOSEPH A. D'AGOSTA
Deputy Commissioner
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