DJ 210321 RO
STATE OF NEW YORK
DIVISION OF HOUSING AND COMMUNITY RENEWAL
OFFICE OF RENT ADMINISTRATION
92-31 UNION HALL STREET
JAMAICA, NEW YORK 11433
------------------------------------X S.J.R. 6224
IN THE MATTER OF THE ADMINISTRATIVE ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.: DJ 210321 RO
DRO DOCKET NO.: CDR 18,410
PREMIER ASSOCIATES, AS AMENDED
TENANT: JUDITH KAMEN
ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
AFTER COURT REMIT
On October 27, 1989 the above-named petitioner filed an
Administrative Appeal against orders issued on October 6, 1989
by the District Rent Administrator of the Queens District Rent
Office, concerning the housing accommodations known as
Apartments 7E and 7F at 1401 Ocean Avenue, Brooklyn, New York.
On November 29, 1991, the Commissioner issued an order and
opinion denying the petitioner's administrative appeal.
Subsequent thereto, the petitioner owner filed a petition in the
Supreme Court pursuant to Article 78 of the Civil Practice Law
and Rules requesting that the order of the Commissioner be
On April 10, 1992 an order was signed by the Honorable Julius
Vinik, Justice remitting the proceeding to the Division of
Housing and Community Renewal determination of the issues raised
in the Article 78 petition.
The issue herein is whether the Rent Administrator's order was
This proceeding was originally commenced by the filing on March
22, 1984 of two rent overcharge complaints by the tenant
concerning her two apartments.
By orders issued on October 6, 1989 under Docket Numbers 18,410,
As Modified, the Rent Administrator determined the lawful
stabilized rent for apartments 7E and 7F, determined that the
tenant had been overcharged and directed the owner to refund such
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overcharge to the tenant as well as to reduce the rent.
In the Artile 78 petition the owner contends that by statute it
should not have be required to submit rent records prior to
April 1, 1980.
After careful consideration of all the evidence of record, the
Commissioner is of the opinion that this petition 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 (or the date the apartment became
subject to rent stabilization, if later) to date and to produce
such records to the DHCR upon demand.
Section 26-516 of 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
produce rent records for more than 4 years prior to the most
recent registration, and concomitantly, established a 4 year
limitation on the calculation of rent overcharges.
It has been the DHCR's policy that overcharge complaints filed
prior to April 1, 1984 are to be processed pursuant to the law or
Code in effect on March 31, 1984. (See Section 2526.1(a)(4) of
the current Rent Stabilization Code.) The DHCR has therefore
applied Section 42A of the former Code to overcharge complaints
filed prior to April 1, 1984, requiring complete rent records in
these cases. In following this policy, the DHCR has sought to be
consistent with the legislative intent of the Omnibus Housing Act
(Chapter 403, Laws of 1983), as implemented by the New York City
Conciliation and Appeals Board (CAB), the predecessor agency to
the DHCR, to determine rent overcharge complaints filed with the
CAB prior to April 1, 1984 by applying the law in effect at the
time such complaints were filed so as not to deprive such tenants
of their right to have the lawful stabilized rent determined from
the June 30, 1974 base date and so as not to deprive tenants
whose overcharge claims accrued more than 4 years prior to April
1, 1984 of their right to recover such overcharges. In such
cases, if the owner failed to produce the required rent records,
the lawful stabilized rent would be determined pursuant to the
default procedure approved by the Court of Appeals in 61 Jane
Street Associates v. CAB, 65 N.Y.2d 898, 493 N.Y.S.2d 455 (1985).
However, it has recently been held in the case of J.R.D. Mgt. v.
Eimicke, 148 A.D.2d 610, 539 N.Y.S.2d 667 (App. Div. 2d Dep't
1989), motion for leave to reargue or for leave to appeal to the
Court of Appeals denied (App. Div. 2d Dep't, N.Y.L.J., June 28,
1989, p.25, col. 1), motion for leave to appeal to the Court of
Appeals denied (Court of Appeals, N.Y.L.J., Nov. 24, 1989, p. 24,
col. 4), motion for leave to reargue denied (Court of Appeals,
N.Y.L.J., Feb 15, 1990, p. 25, col. 1), that the law in effect at
the time of the determination of the administrative complaint
rather than the law in effect at the time of the filing of the
complaint must be applied and that the DHCR could not require an
owner to produce more than 4 years of rent records.
Since the issuance of the decision in JRD, the Appellate
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Division, First Department, in the case of Lavanant v. DHCR, 148
A.D. 2d 185, 544 N.Y.S.2d 331 (App. Div. 1st Dep't 1989), has
issued a decision in direct conflict with the holding in JRD.
The Lavanant court expressly rejected the JRD ruling, finding
that the DHCR may properly require an owner to submit complete
rent records, rather than records for just four years, and that
such requirement is both rational and supported by the law and
legislative history of the Omnibus Housing Act.
Since in the instant case the subject apartments are located in
the Second Department, the DHCR is constrained to follow the JRD
decision in determining the tenant's overcharge complaint,
limiting the requirement for rent records to April 1, 1980. An
examination of the rent records from April 1, 1980 for apartments
7E and 7F discloses that no rent overcharge occurred for both
apartments. Therefore, the Rent Administrator's order finding a
rent overcharge must be revoked.
If the owner has already complied with the Rent Administrator's
order and there are arrears due to the owner as a result of the
instant determination, the tenant shall be permitted to pay off
the arrears in twenty four equal monthly installments. Should
the tenant vacate after the issuance of this order or have
already vacated, said arrears shall be payable immediately.
THEREFORE, in accordance with the Appellate Division ruling in
JRD, it is
ORDERED, that this petition for administrative review be, and the
same hereby is, granted, and, that the order of the Rent
Administrator be, and the same hereby is, revoked, and it is
found that no rent overcharge occurred.
JOSEPH A. D'AGOSTA
Acting Deputy Commissioner