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
------------------------------------X ADMINISTRATIVE REVIEW
IN THE MATTER OF THE ADMINISTRATIVE DOCKET NO.: DK210345RT
APPEAL OF
Steven Saltzman
RENT ADMINISTRATOR'S
PETITIONER DOCKET NO: BB230178OM
------------------------------------X
ORDER AND OPINION GRANTING IN PART PETITION FOR ADMINISTRATIVE
REVIEW
On November 17, 1989, the above named petitioner-tenant timely
refiled a petition for administrative review (PAR) against an order
issued on September 1, 1989, by a Rent Administrator concerning the
housing accommodations known as 2901 Avenue J, APT C7, Brooklyn,
New York, wherein the Rent Administrator determined that the owner
was entitled to a rent increase based on the installation of major
capital improvements (MCIs).
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 this administrative appeal.
The owner commenced this proceeding on February 27, 1987, by filing
an application for a rent increase based on the installation of the
following MCIs at a total cost of $52,900.00:
A)Boiler/burner; and
B)Pointing & waterproofing.
On September 1, 1989, the Rent Administrator issued the order here
under review finding that the installations qualified as MCIs,
determining that the application complied with the relevant laws
and regulations based upon the supporting documentation submitted
by the owner, and allowing rent increases for rent regulated
tenants.
In this petition, the tenant contends, in substance, that his
vacancy lease did not provide information about the pending MCI
increase; that the improvements were done to repair defects in the
building; and that the owner added the increase to his rent after
he had already been overcharged.
Admin Rev. Docket No. DK210345RT
In response to the tenant's petition, the owner contends, in
substance, that the rent charged to the tenant was within the Rent
Board guidelines; that the tenant was not notified of the pending
MCI application prior to occupancy; that the lease rider signed by
the owner and attached to the vacancy lease signed by the tenant
informed the tenant of the pending application; that item 31 of the
lease contains language which obligates the tenant to pay a rent
increase if found warranted by DHCR should the owner apply; and
that since the tenant signed the lease, he is obligated to comply
with the terms therein.
In reply to the owner's response, the tenant maintains that the
rider was not attached to the lease when it was executed; and that
the rider does not contain his signature as it was never served on
him.
In rebuttal to the tenant's assertions, the owner states that
proper notice was given to the tenant regarding the pending
application; that the rider which was attached to the lease was
overlooked by the tenant; that the owner failed to ensure that the
lease rider was properly executed when the lease was returned; and
that it would be inequitable for the tenant to gain an economic
advantage due to the owner's said inadvertence as he had benefitted
from the MCIs during his occupancy of the premises.
After a careful consideration of the entire evidence of record, the
Commissioner is of the opinion that the petition should be granted
in part.
The evidence of record in the instant case indicates that the
alleged vacancy lease rider was not properly executed as it did not
contain the tenant's signature. Ultimately, it is the
responsibility of the owner to ensure that the vacancy lease and
attached riders have been signed by all affected parties in order
to validate said documents. In light of the fact that the "lease
rider" was not executed properly, the tenant's assertions shall be
deemed to have merit.
In the absence of a valid lease rider and in accordance with
Section 2522.4 (a)(5) of the Code, the increase was not effective
and collectible from apartment C-7 until the expiration of the
lease term then in effect at the time of issuance of the
Administrator's order (September 1, 1989), provided the renewal
lease contained a general authorization provision for adjustment of
the rent reserved by the DHCR order.
[2]
Admin Rev. Docket No.DK210345RT
Accordingly, the owner shall refund to the tenant within 30 days of
the issuance of this order and opinion any monies collected as a
result of the MCI herein during the term of his vacancy lease.
It is noted that the tenant may file an overcharge complaint with
the Division after the expiration of the time period herein
specified which may result in treble damages.
THEREFORE, in accordance with the Rent Stabilization Law and Code,
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 by changing the effective and collectible date of the
increase for apartment C-7 as provided for herein; and that as so
modified, said order of the Administrator be, and the same hereby
is, affirmed.
ISSUED:
JOSEPH A. D'AGOSTA
Deputy Commissioner
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