DF210392RO
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. DF210392RO
: DRO DOCKET NO. 46789
Jac Bay Inc.,
TENANT: Diane Anderson
PETITIONER :
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On June 30, 1989, the above-named petitioner-owner filed a Petition for
Administrative Review against an order issued on May 26, 1989, by the
Rent Administrator concerning the housing accommodations known as 345
86th Street, Brooklyn, New York, Apartment No. 111, wherein the Rent
Administrator determined that the owner had overcharged the tenant.
The Administrative Appeal is being determined pursuant to the provisions
of Section 2526.1 of the Rent Stabilization Code.
The issue herein is whether the Rent Administrator's order was
warranted.
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 appeal.
This proceeding was originally commenced by the tenant in August, 1984
by filing of an objection to rent registration including a rent
overcharge complaint.
The owner was served with a copy of the tenant's complaint, and was
requested to submit rent records from April 1, 1980 to prove the
lawfulness of the rent being charged. The owner failed to submit the
requested information.
Under Docket Number 46789, the Rent Administrator determined that due to
the owner's failure to submit a complete rental history, the tenant had
been overcharged in the amount of $5,231.28 including treble damages on
the overcharge occurring on and after April 1, 1984 and directed the
owner to refund such overcharge to the tenant as well as to reduce the
rent.
In this petition, the owner alleges that no overcharge exists and that
he was unable to provide a rental history during the proceeding before
DF210392RO
the Administrator because of ongoing treatment for illness. With his
petition, the owner submitted leases from 1978, a letter from his
physician, and a photocopy of N.Y.C. Conciliation and Appeals Board
Order No. 21,907 granting him an increase in rent due to a major capital
improvement, effective November 1981, along with a paid invoice for a
new stove and refrigerator for the subject apartment.
In answer to the owner's petition, the tenant states, among other
things, that there had been no improvements made to her apartment.
The Commissioner is of the opinion that this petition should be denied.
Section 26-516 of the Rent Stabilization Law, effective April 1, 1984,
limited an owner's obligation to provide rent records by providing that
an owner may not be required to maintain or to produce rent records for
more than four (4) years prior to the most recent registration, and
concomitantly, established a four year limitation on the calculation of
rent overcharges.
Section 2529.6 of the Rent Stabilization Code states, in pertinent part,
that review pursuant to that part shall be limited to facts or evidence
before a Rent Administrator as raised on the petition. Since the leases
from the base date were not submitted in the proceeding before the
Administrator, they may not be considered on appeal. The owner's
explanation of his failure to provide the requisite documents does not
negate the default, nor does it overcome the presumption of willfulness.
With regard to the Major Capital Improvement (NY. C.A.B. Order No.
21,907), the Commissioner notes that the increase became effective
November 14, 1981. Since the Administrator's default rent computation
was based on 1984 rents, the owner, in that default rent computation,
should have obtained the benefit of his increase for a major capital
improvement, and would not be entitled to additional credit for it.
Moreover, it is noted that even if an increase for a major capital
improvement were warranted there were errors in processing, including
not utilizing the lowest rent but rather the average of the stabilized
rents to compute the default rent, and failure to freeze the rent on
default, and application of the correct processing procedure would more
than negate any benefit to the owner based on the owner's MCI claim. As
such, and in the absence of a timely petition for administrative review
by the tenant, the Commissioner finds it appropriate to deny this
portion of the appeal.
Concerning the invoice for equipment, the Commissioner notes that since
it had not been submitted during the proceeding before the
Administrator, it may not be submitted for the first time on appeal.
Based on the foregoing, a total overcharge of $5,231.28 occurred from
December 15, 1982 to December 31, 1985 including treble damages on the
overcharge occurring on and after April 1, 1984 and excess security.
The owner is directed to reflect the findings and determinations made in
this order on all future registration statements, including those for
the current year if not already filed, citing this order as the basis
for the change. Registration statements already on file, however,
DF210392RO
should not be amended to reflect the findings and determination made in
this order. The owner is further directed to adjust subsequent rents to
an amount no greater than that determined by this order plus any lawful
increases.
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 or not
in excess of twenty percent per month thereof may be offset against any
rent thereafter due the owner.
THEREFORE, in accordance with the provisions of the Rent Stabilization
Law and Code, it is
ORDERED, that this petition for administrative review be, and the same
hereby is, denied, and, that the order of the Rent Administrator be, and
the same hereby is, affirmed. The amount of the rent overcharge through
December 31, 1985 is $5,231.28.
ISSUED:
JOSEPH A. D'AGOSTA
Deputy Commissioner
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