Docket Number: EI-210062-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 : S.J.R. NO. 5617
APPEAL OF : ADMINISTRATIVE REVIEW
: DOCKET NO.: EI 210062-RO
JOHN GUARRERA, :
: DRO DOCKET NOS.:
PETITIONER : K-3105228-R As Amended
------------------------------------X AL-210228-RT
TENANTS: ANNE PASMANICK
and L. ANDERSON
ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
On September 6, 1990, the above named petitioner-owner filed a
Petition for Administrative Review against an order issued on August
3, 1990, by the District Rent Administrator, 92-31 Union Hall
Street, Jamaica, New York, concerning the housing accommodations
known as Apartment 4-R, 179 Seventh Avenue, Brooklyn, New York,
wherein the District Rent Administrator determined that the owner
had overcharged the tenant.
Subsequent thereto, the owner filed a petition in the Kings County
Supreme Court pursuant to Article 78 of Civil Practice Law and Rules
seeking an annulment of the "deemed denial" of his petition.
The issue in this appeal is whether the District Rent
Administrator's order was warranted.
The applicable section of the law is Section 2522.4 of the Rent
Stabilization Code.
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 administrative appeal.
This proceeding was commenced on January 16, 1984 by the tenants'
filing of a rent overcharge complaint with the New York City
Conciliation and Appeals Board (CAB), the agency formerly charged
with enforcing the Rent Stabilization Law, wherein the tenants
alleged that the prior tenant paid a monthly rent which was less
than the lease amount.
In his answer to the complaint, the owner contended in substance
that the base rent date for the subject apartment was August 1,
1980, and that improvements were made to the subject apartment prior
to the complaining tenants' occupancy. In support of these
contentions, the owner submitted leases covering the period from
August 1, 1980 through December 31, 1984, and an Owner's Application
dated March 27, 1984 requesting a rent adjustment based upon
improvements/new equipment. The owner submitted several invoices
and cancelled checks in support of his application.
Docket Number: EI-210062-RO
On July 8, 1986, the owner was sent a final notice demanding
documentation to substantiate the claimed base rent date of August
1, 1980. In response, the owner submitted a copy of a document
stating that the subject apartment was vacant from June 1980 to July
13, 1980, and that the prior tenant was the first rent stabilized
tenant who rented the subject premises on July 14, 1980 at a monthly
rental of $400.00.
In Order Number CDR 26, 221 issued November 14, 1986, the District
Rent Administrator accepted the rental history submitted by the
owner and determined that the tenant had not been overcharged.
In her petition under Administrative Review Docket Number
AL-210228-RT, the tenant contended in substance that the District
Rent Administrator's order was incorrect and should be reversed
because the prior tenant only paid a monthly rent of $275.00 despite
the rent amount listed in the lease, the adoption of a base rent
date of August 1, 1980 was arbitrary, the granting of a rent
increase for the installation of new equipment was unwarranted as
the owner's application for a rent increase based on new
improvements (Docket Number K-000039-OI) was denied, and she never
consented to the improvements.
In response, the owner contended in substance that the prior
tenant's lease ran from August 1, 1980 through January 31, 1982 at a
monthly rental of $400.00 which the prior tenant paid partly by
check and partly by cash, that the prior tenant moved out after one
year, that the owner installed new equipment while the subject
apartment was vacant, that he submitted the necessary documentation
to prove that the tenant had not been overcharged, and that he had
requested a rent adjustment under Docket Number K-000039-OI because
he had made a mistake in calculating the complaining tenant's rent,
but still hadn't received a decision.
In Administrative Review Docket Number AL-210228-RT issued March 29,
1990, the Commissioner remanded the proceeding to the District Rent
Administrator to determine the proper base rent date of the subject
apartment, the actual monthly rent paid by the prior tenant, and the
rent increase authorized pursuant to Section 2522.4 of the Rent
Stabilization Code for the installation of new equipment installed
in the subject apartment prior to the occupancy of the complaining
tenant.
On June 6, 1990, the owner responded by contending in substance that
the complaining tenants' initial lease commenced in January of 1983
and terminated in December of 1984, that the owner made several
improvements to the subject apartment while the subject apartment
was vacant and prior to the occupancy of the complaining tenants,
that these improvements included removing and replacing a new wall
in the bedroom, new bathroom and bedroom doors, new kitchen
cabinets, new outlets, rewiring, new bathroom shower, repiping for
the kitchen sink, and a new kitchen sink and faucets at a total cost
of $3,117.04, that the owner was entitled to a rent increase of
1/40th of the cost of these improvements ($77.93), that the prior
tenant paid a total monthly rent of $400.00- $275.00 by check and
$125.00 in cash, that the owner's due process rights require a
hearing on the issue of the amount of rent paid by the prior tenant,
that the prior tenant was the first rent stabilized tenant of the
subject apartment after decontrol, and that the prior tenant was
Docket Number: EI-210062-RO
served with a DC-2 Notice but failed to file an appeal. In support
of these contentions, the owner submitted copies of cash receipts
from August 1980 through December 1981, each in the amount of
$125.00 and each one indicating "balance of the rent," rent ledgers
for 1980 and 1981, and a DC-2 Notice dated August 28, 1980 with
proof of service. Unfortunately, the owner's submission was
received by DHCR, but was never delivered to or considered by the
Administrator. The tenants did not respond to the Notice of
Reopening.
In Order Number CDR 26, 221 as amended and issued August 3, 1990,
the District Rent Administrator revoked its previous order of
November 14, 1986, and determined that the base rent date for the
subject apartment was August 1, 1980, that the prior tenant paid a
monthly rent of $275.00 due to the owner's failure to submit
evidence to substantiate his allegation that the prior tenant paid a
monthly rent of $400.00, that the owner was not entitled to a rent
increase for improvements made to the subject apartment because the
improvements were made after the commencement date of the
complaining tenants' initial lease and there was no evidence that
the tenants consented to a rent increase, and that the tenants had
been overcharged since January 1, 1982. The Administrator directed
the owner to refund to the tenants $15,642.39 which included excess
security and treble damages on that portion of the overcharge
occurring on or after April 1, 1984.
In this petition, the owner contends in substance that the District
Rent Administrator's order is incorrect and should be reversed
because the Administrator ignored the evidence he submitted on June
8, 1990 which proved that the prior tenant's monthly rent was
$400.00, and that the owner was entitled to a rent increase for the
improvements made to the subject apartment while it was vacant and
before the complaining tenants moved in.
The tenants did not submit a response to the owner's petition.
The Commissioner is of the opinion that this petition should be
granted.
Concerning the issue of the amount of rent paid by the prior tenant,
the Commissioner notes that $400.00 was the monthly rental amount
stated in the prior tenant's lease and in the DC-2 Notice which was
served on the prior tenant. Furthermore, the owner provided
cancelled rent checks and cash receipts which indicate that the
prior tenant paid a monthly rent of $400.00, $275.00 by check and
$125.00 in cash. Accordingly, the Commissioner finds that the owner
has proven by a preponderance of the evidence that the prior
tenant's monthly rent was $400.00.
An examination of the rental history for the subject apartment
reveals that the complaining tenants' initial lease commenced on
January 1, 1983 rather than January 1, 1982 as stated by the
Administrator. Thus, the Commissioner finds that the Administrator
erred in denying the owner a rent increase for improvements made to
the subject apartment based on the fact that the improvements were
made during the term of the complaining tenants' lease, but without
the tenants' consent.
The evidence of record discloses that the owner installed new
Docket Number: EI-210062-RO
equipment (bathroom and bedroom doors, repiping for kitchen sink,
kitchen sink, shower, cabinets, rewiring with outlets) at a cost of
$2,115.20 when the subject apartment was vacant and prior to the
occupancy of the complaining tenants. Thus, the owner was entitled
to increase the complaining tenants' initial rent by $52.88 (1/40th
of the total cost for the new equipment). Accordingly, the
Commissioner finds that the Administrator erred in not including the
above-mentioned sum in the complaining tenants' initial rent. The
Commissioner notes that painting, plastering, priming and the
sanding and refinishing of floors are considered normal maintenance
for which the owner is not entitled to a rent increase.
Based on the foregoing, the Commissioner has recalculated the lawful
stabilization rents on the amended rent calculation chart attached
hereto and made a part hereof. As shown on the chart, the tenants
have not been overcharged.
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 may pay off the arrears in twelve
equal monthly installments. Should the tenant vacate after the
issuance of this order, said arrears shall be payable immediately.
THEREFORE, in accordance with the Rent Stabilization Law and Code,
it is
ORDERED, that this petition be, and the same hereby is, granted, and
that the District Rent Administrator's order be, and the same
hereby is, revoked.
The lawful stabilization rents are established on the attached chart
which is fully made a part of this order.
ISSUED:
ELLIOT SANDER
Deputy Commissioner
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