DB 210057 RO
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. DB 210057 RO
: DISTRICT RENT OFFICE
691 Union Street Corp., DOCKET NO. BB 210229 R
(Rudy Kats)
TENANT: George Perry and
Kathy Spence
PETITIONER :
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ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
IN PART
On February 13, 1989, the above-named owner filed a Petition for
Administrative Review against an order issued on January 11, 1989,
by the Rent Administrator in Jamaica, concerning the housing
accommodations known as 691 Union Street, Brooklyn, New York,
Apartment No. 3L, wherein the Administrator determined that the
above-named tenants had been overcharged by $7,010.80 (including
excessive security deposited and interest).
This proceeding originated with the tenants' Complaint of Rent
Overcharge, which stated that they had moved into the subject
apartment in February of 1987, at a rental of $567.38 monthly,
whereas the rent in early 1986 had been $251.90. In answer the
owner stated that the "first lease" of the subject apartment had
been entered into with "Mr. Greenberg on 9-15-86: a two-year lease
at a monthly rent of $497.92," and that after Greenberg had broken
that lease, the apartment had been rented to the complainants
herein.
On August 24, 1988, and again on September 21 of that year, the
Administrator asked the owner for documentation of the
aforementioned rental history; the record contains no response to
that request. The Administrator also requested further information
from the tenants, who responded with a copy of their second lease
for the subject apartment, and with the statement that they had
vacated same on April 25, 1988.
The aforementioned order -- determining the tenants' first lawful
rent to have been $296.91 and calculating an overcharge through
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January 31, 1989 -- ensued, the Administrator stating therein that
because the owner had failed to submit the requested previous
tenant's lease, the previous-rental figure used in the order
($265.95) had come from rent-registration records.
The petition herein, supplemented by a submission from the new
owner of the premises, makes two points: that the aforementioned
Greenberg lease was indeed executed; and that the tenants herein
"broke the renewal lease in February of 1988; the apartment
remained vacant for 12 months and the landlord is suing them" for
that reason.
The Commissioner is of the opinion that this petition should be
granted in part.
The Administrator's calculations include no Greenberg lease for
$497.92 for a simple reason: no substantiation of same was
presented to him. The Commissioner's task on appeal is equally
simple, for petitioner's mere reiteration of the purported details
of that tenancy obviously provides no reason to upset the
Administrator's determination. In addition, it is noted that
although the new owner subsequently submitted a copy of the
Greenberg lease, such lease cannot be considered for the first time
on appeal since this is not a de novo proceeding. Moreover such
lease refers to apartment 1L whereas the subject apartment is
apartment 3L.
The other ground of this appeal clearly implies that the
Administrator should not have calculated twelve months of
overcharge for a tenancy that was much shorter, and less clearly,
that amounts the tenants may owe under the lease in question should
be used to offset that overcharge.
There was no basis for calculating twelve months of overcharge for
a renewal lease period that all agree lasted no more than two
months and 25 days, so the Administrator's determination must be
adjusted. As to the amount of that adjustment, although the
petition says the tenants "broke" the lease "in February" of 1988,
there is no explicit statement that they ceased paying rent at that
time and no denial that they vacated on April 25. In recalculating
the overcharge, then, the Commissioner will deem the rent to have
been paid through April; nine months of the assessed overcharge
will therefore be removed, leaving a revised overcharge under the
second lease of $805.74 plus $60.43 in accrued interest (through
the date of the Administrator's order). Adding those amounts to
their counterparts under the tenants' first lease, and further
adding $268.58 in excessive security deposited, yields a total
refund of $4517.68.
(To the extent that the present owner's submission can be read as
asking the Commissioner to offset against the overcharge, rents
owed under the lease broken by the tenants, the Commissioner would
point out that the instant determination is without prejudice to
DB 210057 RO
any remedy the owner may seek in court against the tenant).
Because this determination concerns lawful rents only through April
30, 1988, the owner is cautioned to adjust subsequent rents to an
amount no greater than that determined by this order plus any
lawful increases, and to register any adjusted rents with this
order and opinion being given as the explanation for the
adjustment.
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 Rent Stabilization Law and Code,
it is
ORDERED, that this petition be, and the same hereby is, granted to
the extent set forth above, modifying the Administrator's order by
changing the overcharge found therein to the aforementioned
$4517.68.
ISSUED:
JOSEPH A. D'AGOSTA
Acting Deputy Commissioner
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