Adm. Rev. Docket No.: CG420045RO
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.: CG420045RO
:
WALTER M. EBERHART, JR. DRO DOCKET NOS:
BG420386R
PETITIONER :
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TENANTS: HAROLD ROSENTHAL
ORDER AND OPINION REMANDING PROCEEDING ON APPEAL
On July 22, 1988, the above-named petitioner-owner filed a Petition
for Administrative Review (PAR) against an order issued on July 20,
1988, by the District Rent Administrator at Gertz Plaza, Jamaica,
Queens, New York, concerning the housing accommodations known as
Apartment 4FE at 314 East 82 Street, New York, New York, wherein
the Administrator determined the maximum collectible rent for the
subject Rent Controlled housing accommodation as of January 1,
1985, 1986 and 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 PAR.
The proceeding below was commenced by the tenant's filing of a
complaint of a rent overcharge.
On the whole, the Commissioner finds that the basic facts herein
are not in dispute and are, in substance, as follows. When the
tenant took occupancy, the apartment consisted of four rooms and
the use of a separate toilet-closet off of the public hallway. The
kitchen in the apartment contained a washbasin and bathtub. The
tenant was approached by management and asked to consent to
discontinuing the use of the hallway toilet and the installation of
a new bathroom; to be installed within the interior dimensions of
his original four room apartment. Said installation was completed
and the owner sought no increase in rent based thereon.
The tenant's rent overcharge complaint is based on the theory that
Adm. Rev. Docket No.: CG420045RO
after the new bathroom was put in, he had a three room apartment
(bathrooms generally not being counted as a room for most purposes)
but continued to be charged rent at the same rate that had been set
for a four room apartment.
The owner responded to this theory, in substance, by asserting that
the amount of space lost was insignificant; that it was nothing
more than the space taken up by the water closet in the hall; which
the owner alleges contained 11.35 square feet: only 2.69% of the
space originally let to the tenant.
In the appealed order, the Administrator determined that the
maximum collectible rent effective January 1, 1985 was $213.74 per
month; the maximum collectible rent effective January 1, 1986 was
$229.77 per month; and $240.19 per month effective January 1, 1987.
The Administrator's order also contained the following statements:
This notice is without prejudice to the owner's filing
under section 2202.22 (formerly Sec. 36) of the
Regulations for adjustments based on Major Capital
improvement and increases in services or equipment to
subject building or apartment.
Regarding the room count the tenant may file a
Challenge to the Maximum Base Rent Order of Eligibility
or to the Fuel Cost Adjustment Report as set forth on
said order or report when they are issued.
In the PAR, the owner challenges the Administrator's order, in
substance, on the following grounds. The order does not contain a
rationale for the calculation of the rents determined therein; the
bathroom was installed in 1986, yet the 1985 rent is adjusted in
the order.
In answer to the PAR, the tenant, in substance, asserts the
following. The events in question occurred in 1985, not 1986 and
the water closet was needed by the owner for another apartment. It
was therefore for the owner's convenience that the reconfiguration
of the tenants's apartment was made and the tenant should be
compensated for the loss of the room he suffered as a result of
this adjustment in his living space.
The Commissioner is of the opinion that the PAR should be granted
to the extent of remanding this proceeding to the Administrator.
The Commissioner finds that the appealed order, in effect, implies
that the rent adjustments contained in it have nothing to do with
the tenant's loss of a room and were calculated without any
consideration of whether the installation of the subject bathroom
in any way constituted an increase in services. The Commissioner
therefore finds that as the order contains neither a statement of
the rationale upon which the Administrator determined that rent
Adm. Rev. Docket No.: CG420045RO
adjustments were warranted nor a description of the methodology
used to calculate the adjusted rents, this matter must be remanded
to the Administrator for reconsideration of this order and the
issuance of a more expository order thereupon.
Mindful of the fact that there have been intervening Maximum Base
Rent Orders issued during the pendency of this appeal and in order
to avoid unnecessary confusion as to the rent to be paid following
the issuance of this order and opinion, the Commissioner has not
revoked the appealed order; it being the intention and direction of
the Commissioner that, barring other proper adjustments that may be
warranted for reasons unrelated to the issues in this proceeding,
the maximum base rent and the maximum collectible rent as
determined by the last order of eligibility issued by the
Administrator (with regard to this apartment) shall remain in
effect until the Administrator issues a further order on remand.
THEREFORE, in accordance with the provisions of all of the
applicable laws and regulations, it is
ORDERED, that this Petition be, and the same hereby is granted to
the extent that this proceeding is remanded to the Administrator
for reconsideration of the appealed order in accordance with the
terms of this order and opinion.
ISSUED:
JOSEPH A. D'AGOSTA
Deputy Commissioner
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