DOCKET NOS.: DB420164RT, etal
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 :
APPEAL OF ADMINISTRATIVE REVIEW
: DOCKET NOS. DB420164RT DB420173RT
VARIOUS TENANTS, : DB420166RT DB420175RT
PETITIONERS : DB420168RT DC420178RT
------------------------------------X DB420169RT DC420179RT
DISTRICT RENT OFFICE
DOCKET NOS. CE420445R CE420443R
ORDER AND OPINION GRANTING TWELVE PETITIONS FOR ADMINISTRATIVE REVIEW
IN PART AND GRANTING SIX OTHER PETITIONS FOR ADMINISTRATIVE REVIEW
These petitions have been consolidated as they involve common issues of law
and fact. The petitioner-tenants filed timely Petitions for Administrative
Review against orders issued in January and February 1989, by the Rent
Administrator, 92-31 Union Hall Street, Jamaica, New York, concerning housing
accommodations known as various Apartments, 1567, 1571, and 1575 Lexington
Avenue, New York, New York, wherein the Rent Administrator determined the
Maximum Collectible Rent for the subject apartments from January 1, 1983 to
the date of the Administrator's orders. The orders further noted that the
rent determined therein did not include the 1988 Maximum Base Rent increases,
if any, for which the owner may have applied and may have been eligible. In
addition, the order listed the Fuel Cost Adjustments from 1980 through 1985.
the orders noted that the 1985 Fuel Cost Adjustment had been suspended but
that a cumulative adjustment of $3.45 per room was reinstated as of January
The issues in these appeals are whether the Administrator erred by not
determining the Fuel Cost Adjustments for the years 1986, 1987 and 1988 and
by not awarding overcharge refunds to the tenants.
The applicable sections of the Rent and Eviction Regulations are Sections
DOCKET NOS.: DB420164RT, etal
2201, 2202.13, 2205.1(a), and 2206.8.
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 tenants commenced these proceedings by filing overcharge complaints
alleging that the owner had charged Fuel Cost Adjustments for the years 1986,
1987, and 1988 even though the owner was ineligible to make such charges due
to the failure of the owner to file the required notices.
In answer to each complaint, the owner stated that fuel charges had been
waived by the owner since 1985.
In these petitions the tenants contend that the Rent Administrator's Orders
are incorrect and should be modified because the Administrator failed to
determine the Fuel Cost Adjustments for the years 1986, 1987 and 1988,
although specifically requested to do so in the tenants' complaints. In
addition, the tenants of 1571 and 1575 Lexington Avenue contend they should
have received overcharge awards from the Administrator. The otherwise
identical petitions for the tenants of 1567 Lexington Avenue do not raise
The owner failed to answer these petitions, although given the opportunity to
The Commissioner is of the opinion that these petitions should be granted.
At the outset the Commissioner notes that under Section 2206.8 of the
Regulations, a tenant can only enforce the prohibition against overcharging
under Rent Control by bringing an action against the owner in a court of
competent jurisdiction. The DHCR has no jurisdiction to make actual
overcharge awards under Rent Control (unlike Rent Stabilization, under which
the DHCR can order a refund and such order can be enforced as a judgment).
Therefore, the Administrator was correct not to make such an award in the
orders under appeal. All the Administrator can do is to specify the correct
rents and Fuel Cost Adjustments so that the parties will be able to determine
the existence and amount of any overcharge.
If the owner fails to make a refund of any overcharge, a tenant must proceed
against the owner in a court of competent jurisdiction. Accordingly, the
petitions regarding 1571 and 1575 Lexington Avenue (captioned docket numbers
ending in 164, 165, 166, 167, 168, 169, 117, 178, 179, 180, 181 and 182) are
hereby denied to the extent that they contend the Administrator should have
either ordered an refund or computed the actual overcharges (if any).
Regarding the Fuel Cost Adjustments for 1986-1988, the petitioners are
clearly correct that these were specifically put at issue in each complaint
and should have been confronted in the Administrator's orders.
DHCR records show that all three building use #6 fuel oil and that for the
year 1985 the Fuel Cost Adjustment (FCA) was suspended for each of the three
buildings based on the owner's failure to file a timely report of fuel cost
decrease as required by Section 2202.13e. Each of the Suspension orders
stated that as of January 1, 1986 the cumulative FCA of $3.45 would be
reinstated. However, DHCR records show that for the years 1986, 1987, 1989,
and 1992 the FCA was suspended for each of the three buildings and that the
DOCKET NOS.: DB420164RT, etal
owner failed to submit any reports from 1984 to 1992. Accordingly, the owner
has not been eligible to collect any FCA from January 1, 1985 and at least
through 1992. Any such collection would constitute an overcharge which, if
not refunded, can be enforced by the tenants by proceeding against the owner
in a court of competent jurisdiction.
THEREFORE, in accordance with the Rent and Eviction Regulations, it is
ORDERED, that the twelve petition regarding 1571 and 1575 Lexington Avenue
(being the first six and last six in numerical order of the above-captioned
petitions) be, and the same hereby are, granted in part, and the six
petitions regarding 1567 Lexington Avenue (being the middle six of the above-
captioned petitions) be, and the same hereby are, granted, and the Rent
Administrator's orders be, and the same hereby are, modified in accordance
with this Order and Opinion.
JOSEPH A. D'AGOSTA