DK 810268-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 810268-RO
STREG, INC. DISTRICT RENT
ADMINISTRATOR'S DOCKET
NO.
PETITIONER WG 86-S-3-R
----------------------------------x TENANT: MAUREEN KURZIG
ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
IN PART
On November 16, 1989, the above-named landlord filed a petition
for administrative review of an order issued on November 2, 1989
by a District Administrator concerning the housing accommodation
known as 90 Pinewood Road, Apartment 1-C, Hartsdale, New York,
wherein the Administrator determined that an overcharge had
occurred.
The Commissioner has reviewed all of the evidence in the record
and has carefully considered that portion of the record relevant
to the issues raised by the petition for review.
This proceeding was commenced on December 19, 1985 upon the
filing of a complaint of rent overcharge by the tenant. The
ten-ant stated therein that her lease had expired on October 31,
1985, and that the landlord assessed a guideline increase for a
two-year renewal lease. The tenant alleged that the landlord was
ineligible for a guideline increase because of the landlord's
failure to timely file an Operating and Maintenance Expenses
Schedule (Schedule).
On January 24, 1986, the Division of Housing and Community
Renewal (DHCR) received the landlord's answer. The landlord
asserted that no overcharge occurred. It submitted a copy of the
tenant's current lease and prior lease, a copy of the Apartment
Registration Form for the subject apartment, and a copy of a DHCR
order granting a Major Capital improvement (MCI) rent increase.
The landlord stated that all rent increases were within appro-
priate guidelines.
In the order here under review, the Administrator determined that
the landlord was not entitled to the guideline increase assessed
on the tenant's two-year renewal lease beginning November 1, 1985
because of its failure to timely file a Schedule for the
1985-1986 guideline period. The Administrator established the
lawful stabilization rent of $450.38 as of November 1, 1985
through October 31, 1987 and directed the owner to refund
$1,161.98 in overcharges including interest through October 31,
1987.
In its petition for administrative review the owner alleges that
the tenant vacated the apartment in July 1987, and that the sub-
ject apartment was sponsor-owned and subsequently sold. The
landlord further alleges that the original complaint and the
Administrator's order related to its failure to file a Schedule
for 1984. It claims that its failure to file was due to the
death of the landlord's bookkeeper and acknowledges that it did
file all required statements in November of 1985. Finally, the
landlord repeats that the tenant vacated the premises in July
1987 and received a lump sum of $6,000 upon her vacating. A copy
of the check is included with its petition for review.
After careful consideration, the Commissioner is of the opinion
that this petition should be granted in part.
First, the landlord contends that the entire proceeding below was
based on the failure to file a Schedule for 1984. This claim is
without merit. Nothing in the original complaint or the
Administrator's order refers to the 1984 filing. The entire
record refers only to landlord's failure to file a Schedule for
1985-1986.
Second, the landlord's claim that it filed late because of the
death of the landlord's bookkeeper is insufficient to warrant
reversal of the Administrator's order. The landlord's obligation
to file a Schedule began on April 1, 1985. Over seven months
elapsed before landlord did file the required Schedule. Despite
the death of the bookkeeper the landlord continued to maintain
services, collect rents, execute leases and conduct all other
business activities. The Commissioner also notes that at no time
between April, 1985 and November, 1985 did the landlord notify
DHCR of its circumstances and request an extension of time for
filing. Accordingly, the Administrator correctly did not permit
the landlord a guideline increase for the tenant's two-year
renewal lease beginning November 1, 1985.
Third, the landlord stated that when the tenant vacated in July
1987 she was given $6,000. There is no allegation or proof by
the landlord that this amount was at all related to the over-
charge complaint here under review. It is a common business
practice to give cash bonuses to rent regulated tenants who
vacate cooperative units. Accordingly, the landlord has not
established that the exchange of money between landlord and
tenant is connected to the issue of overcharges considered in
this proceeding.
Finally, the Administrator's order must be amended. The over-
charge was computed thorough October 31, 1987. This evidence in
the records indicates that the tenant vacated the subject
apart-ment in July 1987. Accordingly, the landlord should have
been directed to refund only $953.57 in overcharges including
interest instead of the $1,161.98 ordered by the Administrator.
THEREFORE, pursuant to the Emergency Tenant Protection Act and
Tenant Protection Regulations, it is
ORDERED, that this petition be, and the same hereby is, granted
in part, and that the Administrator's order be, and the same
hereby is, modified in accordance with this order and opinion;
and it is,
FURTHER ORDERED, that the landlord, Streg, Inc., shall immedi-
ately refund to the tenant all amounts not yet refunded
representing overcharges and interest; and it is,
FURTHER ORDERED, that if the landlord, Streg, Inc., has refunded
no such amounts upon the expiration of the period for seeking
judicial review pursuant to Article 78 of the Civil Practice Law
and Rules, the tenant, who has vacated the premises, may file and
enforce a certified copy of this order as a judgment for the
amount of $953.57 as against Streg, Inc.
ISSUED:
ELLIOT SANDER
Deputy Commissioner
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