STATE OF NEW YORK
DIVISION OF HOUSING AND COMMUNITY RENEWAL
OFFICE OF RENT ADMINISTRATIVE
92-31 UNION HALL STREET
JAMAICA, NEW YORK 11433
IN THE MATTER OF THE ADMINISTRATIVE ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO. CK410043RT
IGNATZ SIKOFAND, DRO DOCKET NO. CB410045RP
PETITIONER OWNER: M.J. RAYNES, INC.
ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On November 17, 1988, the above-named tenant filed a petition for
administrative review of an order issued on October 13, 1988 by a
Rent Administrator concerning the housing accommodations known as
150 West End Avenue, Apartment No. 28S, New York, New York, wherein
the Administrator determined that the owner had overcharged the
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.
This proceeding was originally commenced by the filing of an
overcharge complaint on March 29, 1984 under Docket No. L3116751R.
In this complaint, the tenant stated that the prior tenant
requested assignment of his lease to the complainant-tenant and
that the owner acknowledged receipt of this written assignment
request. The owner did not accept this request for assignment and
required the complainant-tenant to enter into a new vacancy lease.
Further, the complainant requested a general rent review.
In its answer to the complaint, the owner asserted, among other
things, that it was under no obligation to accept the assignment
request; that the owner had thirty days to accept the assignment
request; and that the new vacancy lease was executed well within
the thirty day period, making the assignment request moot. In the
alternative, the owner alleged that the right to protest the
decision to reject an assignment request would belong to the
assignor (prior tenant) and not the assignee (complainant-tenant).
Further, the owner stated that it had detected a slight overcharge
while reviewing this case and had credited the tenant's account to
correct the overcharge.
In the Administrator's order under Docket Number L3116751R issued
on September 19, 1986, the Administrator determined that the tenant
had been overcharged a total of $2,595.17 through July 31, 1986
including excess security and interest on post-April 1, 1984
Both the tenant (Docket No. AJ410282RT) and the owner (Docket No.
AJ410416RO), filed petitions for administrative review of the
Administrator's order of September 19, 1986.
In those petitions both parties continued their arguments regarding
the owner's right to refuse to consent to an assignment.
In addition, the tenant asserted that since an assignment should
have been accepted by the owner, no rent increases for vacancy
improvements should have been granted without his consent.
Finally, the tenant requested the assessment of treble damages on
The owner's petition for administrative review (Docket No.
AJ410416RO) alleged three errors in the Administrator's
calculations including failure to include a Guideline #6C 1/2%
stabilizer, failure to include a Guideline #8 3 1/2% electrical
inclusion allowance and failure to consider the credits that the
owner made when advised of the complaint. Further, the owner
requested that the overcharges be allocated between a prior owner
and the petitioner-owner.
The Commissioner consolidated these petitions and issued an order
on January 29, 1988.
The Commissioner concluded in that ord r that the complainant-
tenant did not have standing to object to the owner's refusal to
consent to the assignment.
Accordingly, the Commissioner also fou d that the complainant-
tenant's consent was not needed for vacancy improvements.
However, the remainder of the issues were remanded to the
Administrator for further processing. Namely, the Administrator
would be required to correct any errors in the calculations,
allocate the overcharges, if appropriate, and reconsider the issue
of treble damages.
The Administrator reopened this proceeding on March 31, 1988 under
Docket Number CB410045RP. The notice sent to the parties to advise
them that the proceeding had been reopened contained a
typographical error. Namely, the notice stated that pursuant to a
remand order of September 19, 1986, instead of January 29, 1988,
the case was being reopened.
The record indicates that the owner participated in the remanded,
reopened proceeding while the tenant did not. The tenant has
subsequently alleged that he was advised by the Administrator that
he would be sent a corrected notice. Because he was waiting for
the corrected notice to be sent, he did not to participate in the
In the Administrator's order here under review, the Administrator
corrected calculation errors and assessed treble damages on the
overcharges occurring post-April 1, 1984. The lawful stabilization
rent for the subject apartment was established as $821.47 for the
lease period beginning August 1, 1985. The total overcharges were
determined to be $758.96 including treble damages.
In his petition for administrative review, the tenant alleged that
the calculations were incorrect but pointed to no specific errors
made by the Administrator in these calculations. Further, the
tenant reasserted that the Commissioner's underlying determination
concerning the proposed assignment of the lease was incorrect.
Finally, the tenant asserted that he had been denied due process in
the Administrator's reprocessing of this case because of the
notification error. The tenant asserted his right to submit
After careful consideration, the Commissioner is of the opinion
that this petition for administrative review should be denied.
The Commissioner finds no errors in the Administrator's recomputed
overcharge calculations, and the tenant brings no specific item to
the Commissioner's special attention. Accordingly, the
Commissioner rejects this allegation.
The Commissioner also finds that the prior ruling in AJ410282RT in
which the Commissioner found that the tenant had no standing to
object to the manner that the owner refused its consent to an
assignment was correct. As was stated in the Commissioner's order
of January 29, 1988:
With regard to the tenant's appeal, the right to object
to the owner's manner of rejecting the prior tenant's
request to assign his lease was personal to the tenant
seeking such assignment. The evidence of record,
particularly the fact that the owner and the complaining
tenant entered into a vacancy lease for the subject
apartment very shortly after the assignment request was
made, indicates that the prior tenant chose to surrender
his lease, without penalty, and not contest the owner's
refusal of his request. Under such circumstances, the
Commissioner is of the opinion that the complaining
tenant lacks the standing to object to the manner that
the owner refused its consent to an assignment of the
prior tenant's lease.
Finally, the Commissioner finds that the due process rights of the
tenant were fully protected. Since the tenant filed his petition
for administrative review on November 17, 1988, no subsequent or
supplemental submissions have been received from the tenant. In
fact, on January 27, 1992 and April 28, 1992 the Commissioner
further communicated with the tenant, through his attorney,
granting him additional time to submit additional statements or
information. In the period of over five years from the date of the
filing of the petition for administrative review to the present no
supplemental submissions have been received. Accordingly, the
tenant's due process rights have been fully protected.
In accordance with Section 2526.1 (f) of the Rent Stabilization
Code, the Commissioner is required to allocate overcharges between
The prior owner (Subzberger-Rolfe, Inc.) is individually liable for
those overcharges occurring prior to April 1, 1984 or $291.92.
The prior owner and the current owner are jointly and severally
liable for those overcharges occurring from April 1, 1984 through
April 15, 1985 (the date that the current owner acquired the
subject building) or $379.47. This order is issued without
prejudice to any action the current owner may have against the
prior owner for overcharges reimbursed by the current owner which
were collected by the prior owner.
The current owner is individually liable for the overcharges
occurring from April 15, 1985 through July 31, 1987 or $87.57.
The Commissioner has determined in this Order and Opinion that the
petitioner-owner is liable for overcharges of $467.04. 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. 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, in accordance with the Rent Stabilization Law and Code,
ORDERED, that this petition be, and the same hereby is, denied, and
that the Administrator's order be, and the same hereby is, affirmed
JOSEPH A. D'AGOSTA