DA 410067 RO; DB 410114 RO
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 : ADMINISTRATIVE REVIEW
APPEALS OF DOCKET NOS. DA 410067 RO
DB 410114 RO
: DISTRICT RENT OFFICE
310 West Realty Company, DOCKET NOS. CA 410061-RP
TENANT: Eileen Zients Douglas
ORDER AND OPINION DENYING PETITIONS FOR ADMINISTRATIVE REVIEW
On January 17, 1989, the above-named petitioner-owner filed a Petition
for Administrative Review against an order issued on December 15, 1988,
by the Rent Administrator, 10 Columbus Circle, New York, New York,
concerning the housing accommodations known as 310 West End Street,
New York, New York, Apartment No. 4B, wherein the Rent Administrator
determined that the owner had overcharged the tenant. On February 1,
1989 the owner filed an amended petition against the aforementioned Rent
The Commissioner notes that this proceeding was filed 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 Administrative Appeals are being determined pursuant to the
provisions of Section 42A of the former Rent Stabilization Code.
The issue herein is whether the Rent Administrator's order was
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 appeals.
This proceeding was originally commenced in February 1984 by the filing
of a ren overcharge complaint by the tenant who took occupancy of the
subject apartment on March 1, 1976 at a rental of $550.00 per month.
In response to the tenant's complaint, the owner stated in substance
that the tenant herein was the first rent stabilized tenant, submitted
DA 410067 RO; DB 410114 RO
a rental history from March 1, 1976 and a copy of a report of statutory
decontrol indicating that the subject apartment became vacant in
February 1976 and was rented to the first rent stabilized tenant (the
tenant herein) on March 1, 1976.
In response to the owner's answer, the tenant stated in substance that
the subject apartment had first become decontrolled in 1968 and
submitted a copy of rent control records to that effect.
In Order Number TC 082960-G, issued on October 10, 1986, the Rent
Administrator determined that there was a rent overcharge due to the
owner's failure to submit a complete rental history. On November 15,
1986 the owner appealed this order under docket number AK 410611 RO and
the Commissioner issued an order remanding the proceeding affording both
parties an opportunity to submit additional evidence. The tenant
submitted a statement from prior tenant Gerald B. Lefcourt to the effect
that he was a tenant in the subject apartment until the fall of 1974 and
for several years prior thereto and had always been treated as a rent
stabilized tenant. The owner failed to submit any additional evidence
on the merits although afforded an opportunity to do so.
In Order Number CA-410061-RP, the Rent Administrator determined that due
to the owner's failure to submit a complete rental history, the owner
had collected a rent overcharge of $10,347.47 including interest on that
portion of the overcharge occurring on and after April 1, 1984.
In its original petition, the owner contends in substance that the Rent
Administrator's order incorrectly relies on the Omnibus Housing Act
passed in 1983; that the Rent Administrator failed to consider all of
the owner's previously submitted evidence; that the tenant's complaint
filed in 1984 should be time barred by the Statute of Limitations; that
the default method used by the Rent Administrator was arbitrary and
capricious and that the prior Rent Administrator's order issued on
October 10, 1986 had listed the March 1, 1983 rent as $659.30.
In its amended petition, the owner contends in substance that it has now
discovered documentation showing that a prior tenant Karen Podell had
occupied the subject apartment between 1974 and 1976 at a rental of
$550.00 - the same rent as the tenant herein initially paid. In support
of this contention the owner submitted a January 14, 1976 rent ledger
listing Karen Podell as the tenant with an original deposit of $550.00.
The Commissioner is of the opinion that these petitions should be
Section 42A of the former Rent Stabilization Code requires that an owner
retain complete records for each stabilized apartment in effect from
June 30, 1974 to date and produce them to the DHCR upon demand. If the
apartment was decontrolled from the Rent Control Law after June 30,
1974, the owner must provide satisfactory documentary evidence of the
apartment's date of decontrol.
In the instant case, the owner has not provided a complete rental
history as mandated by Section 42A. It is noted that in the proceeding
before the Rent Administrator, the owner claimed that the tenant herein
was the first rent stabilized tenant. However rent control records for
DA 410067 RO; DB 410114 RO
the subject apartment indicated that the subject apartment was
decontrolled in 1968 under docket 2 ADL2207. In addition the tenant
submitted evidence indicating that she was not the first rent stabilized
tenant. Moreover in its amended appeal, the owner now claims that a
prior rent stabilized tenant did occupy the subject apartment but again
did not submit sufficient proof of a rental history from the base date.
Further, the owner gave no reasonable explanation as to why this
evidence was not submitted in the proceeding before the Rent
Administrator and since this is not a de novo proceeding it cannot
properly be considered for the first time on appeal.
With regard to the owner's other contentions, it is noted that the Rent
Administrator's order does not rely on the Omnibus Housing Act but on
the Rent Stabilization Law and Code in effect prior thereto; that all of
the owner's submissions in the proceeding before the Rent Administrator
were considered; that the tenant's complaint of rent overcharge was not
time barred by the Statute of Limitations; that the default method used
by the Rent Administrator to set the tenant's initial rent was correct
and in accordance with standard procedure; and that both the Rent
Administrator's prior order and the order appealed herein listed the
March 1, 1983 legal regulated rent for the subject apartment as $659.30.
The evidence of record discloses that the tenant has now vacated the
Accordingly, the Rent Administrator's order establishing the lawful
stabilization rent utilizing the Section 42A default procedure and
finding a rent overcharge was warranted.
Because this determination concerns lawful rents only through
February 28, 1986, the owner is cautioned to adjust subsequent rents to
an amount no greater than that determined by the Rent Administrator's
order plus any lawful increases, and to register any adjusted rents with
this order and opinion being given as the explanation for the
This order may, upon the expiration of the period in which the owner may
institute a proceeding pursuant to Article 78 of the Civil Practice Law
and Rules, be filed and enforced in the same manner as a judgment.
THEREFORE, in accordance with the provisions of the Rent Stabilization
Law and Code, it is
ORDERED, that these petitions for administrative review be, and the same
hereby are, denied, and, that the order of the Rent Administrator be,
and the same hereby is, affirmed.
JOSEPH A. D'AGOSTA
Acting Deputy Commissioner