DK 410299 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. DK 410299 RO
: DISTRICT RENT OFFICE
DOCKET NO. CJ 410204 R
John Schreiber,
TENANT: Janine Pearce
PETITIONER :
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ORDER AND OPINION GRANTING PETITION IN PART AND
REMANDING PROCEEDING TO ADMINISTRATOR
On October 31, 1989, the above-named owner's representative timely
refiled a Petition for Administrative Review against an order issued
by a Rent Administrator on September 5, 1989, concerning the housing
accommodations known as 22 West 90th Street, New York, New York,
Apartment No. 1F, wherein the Administrator determined that the above-
named tenant had been overcharged.
This proceeding originated with the tenant's 1988 overcharge complaint.
In response the owner submitted inter alia: a memorandum addressed to
him under the letterhead of "Ja-Dar Remodeling" of Stamford,
Connecticut, dated April 1, 1986, which states in pertinent part:
Replace kitchen and kitchen cabinets $2500.00
Remodel bathroom incl. new sink,
toilet, bath and tiles $6000.00
Replace wood floors, stain and varnish $2000.00;
a similar memorandum dated April 28, 1986, on which it is hand-written
that $10,893 has been "paid in full"; and a lease rider dated May 1,
1986, in which the tenant at that time stated "To Whom it May Concern"
that she was aware of "substantial improvements" to the subject
apartment, consisting of "a new bathroom, a new floor and new kitchen
appliances and cabinets."
The tenant herein replied in February, 1989, stating inter alia: that
she was shocked at the owner's above-described answer; that neighbors
DK 410299 RO
who had resided in the building in 1986 (and who could hear everything
through their paper-thin walls) had assured her the apartment had not
been remodeled as claimed; that those tenants were willing to submit
affidavits to that effect; that the tenant's refrigerator had no freezer
door and that the shelf brackets therein had rusted off; that the "tiles
in the bathroom are old, cracked and many are missing"; that the kitchen
appliances "are ancient"; and that the tenant would "welcome a visit
from an inspector if that is possible." Along with her reply the tenant
submitted several photographs portraying (a) an open freezer compartment
encrusted with several inches of ice on all sides, (b) an old stove and
(c) chipped and/or missing wall tiles (labelled "bathroom"); the tenant
added that she could "provide a lot more [photographs] if necessary."
(It appears that the tenant's reply was not served on the owner.)
In response to queries from the Administrator, the owner stated inter
alia that the kitchen had been "totally remodeled," including a new
refrigerator and a new stove.
The Administrator's order, here appealed, followed. It includes , for
the lease period commencing on May 1, 1986, a rental increase based on
$1,903.00 in improvements instead of the aforementioned $10,593.00 that
the owner claimed he had spent. The reason given for the smaller
allowance is that because the owner had paid cash for the improvements,
the "J-51 schedule" was being used to determine the amount deemed to
have been spent thereon.
In this petition, the owner attacks the determination of overcharge on
the ground that the policy of employing a schedule as aforementioned
rather than acknowledging sums paid in cash for improvements is
erroneous.
In answering the instant petition, the tenant reiterates her position
before the Administrator, not addressing petitioner's argument regarding
cash payments and the J-51 schedule.
Having carefully considered the record, the Commissioner is of the
opinion that the petition should be granted in part, and this proceeding
remanded to the Administrator for redetermination of the amount spent
for the improvements in question.
Pursuant to judicial decision, it is no longer DHCR policy to employ a
schedule when an owner claims to have paid cash for improvements; rather
the evidence submitted must be evaluated on its merits within the
Administrator's sound discretion. The determination herein cannot,
therefore, be sustained.
Because the subject order appealed herein does not itemize the total
that the Administrator deemed spent on the improvements in question, the
Commissioner cannot now ascertain to what extent the Administrator found
each claimed improvement worthy of inclusion therein. This matter will
DK 410299 RO
therefore be remanded to the Administrator for a determination, de novo,
of this issue and of the consequent total overcharge, if any. Further
the tenant's contention that the improvements claimed were not actually
made should be considered and an inspection should be conducted and/or
a hearing should be held, if warranted. Tenant's February 1987 answer
should be served on owner and owner given a chance to reply.
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, and that this proceeding be, and the same hereby
is, remanded to the Rent Administrator for redetermination of the
tenant's overcharge complaint in accordance with this order and opinion.
The automatic stay of so much of the Rent Administrator's order as
directed a refund is hereby continued until a new order is issued upon
remand. However, the Rent Admnistrator's determination as to the rent
is not stayed and shall remain in effect, except for any adjustments
pursuant to lease renewals, until the Administrator issues a new order
upon remand.
ISSUED:
JOSEPH A. D'AGOSTA
Acting Deputy Commissioner
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