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. 6718
IN THE MATTER OF THE ADMINISTRATIVE : ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO. EC210045RO
: DISTRICT RENT OFFICE
Beach Haven Apts., DOCKET NO. DH210063RP
TENANT: Leonid Bukhgalter
ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On March 9, 1990, the above-named petitioner-owner filed a Petition for
Administrative Review against an order issued on March 1, 1990, by a
Rent Administrator concerning the housing accommodations known as
557 Avenue Z, Brooklyn, New York, Apartment No. 5J, wherein the Rent
Administrator determined that the owner had overcharged the tenant.
Subsequent thereto, the petitioner owner filed a petition in the Supreme
Court pursuant to Article 78 of the Civil Practice Law and Rules in the
nature of mandamus seeking an expeditious determination of the
The Administrative Appeal is being determined pursuant to the provisions
of Section 2526.1 of the Rent Stabilization Code.
The issue herein is whether the Rent Administrator's order was
The Commissioner has reviewed all of the evidence in the record and has
carefully considered that portion of the record relevant to the issue
raised by the administrative appeal.
This proceeding was originally commenced by the filing of a rent
overcharge complaint by the tenant who stated that he assumed occupancy
pursuant to a two year lease commencing on August 1, 1983 at a rent of
$450.00 per month.
In answer to the complaint, the owner denied that there was an
overcharge and submitted rent ledgers dating from 1979.
In Order Number K0009962R, issued on November 12, 1986, the Rent
Administrator determined that there was no overcharge as based upon the
tenant's failure to file a timely objection to the registered rent. The
tenant filed a petition for administrative review of that order wherein
the tenant contended that he did file a timely objection on a form
provided him by the Brooklyn DHCR office, but that it was the incorrect
form; however, the tenant then refiled on the proper form, which was
timely received by the DHCR in July, 1984. On August 17, 1989, the
Commissioner issued an Order and Opinion under DRO number AL210184RT,
which revoked the Administrator's order and remanded the proceeding for
processing as a timely objection to the registered rent.
In Order Number DH210063RP, issued on March 1, 1990, the Administrator
determined that the tenant had been overcharged in the amount of
$2,178.21, including interest, through the lease term ending on July 31,
1989, at a lawful rent of $504.47. The order had commenced with the
lease term commencing on October 1, 1980.
In its petition the owner contends that it was improper for the
Administrator to review the rent as far back as 1980 since the court
decision in JRD Management v. Eimicke restricts the owner's obligation
to produce rent records to four years. Petitioner argues that because
the order ended with the lease which terminated on July 31, 1989, it
could not review the rent farther back than August, 1985.
The tenant's answer disputes this interpretation of the J.R.D. decision,
and the statute, and supports the scope of review in the Administrator's
The Commissioner is of the opinion that this petition should be denied.
Section 2526.1(a)(3)(ii) of the Rent Stabilization Code provides that as
to complaints filed within 90 days of the initial registration of a
housing accommodation, the legal regulated rent for purposes of
determining an overcharge shall be deemed to be the rent charged and
paid on April 1, 1980, or for a housing accommodations not required to
be registered by June 30, 1984, four years prior to the date the housing
accommodation was first required to be registered (or if the housing
accommodation was subject to the RSL and this Code for less than four
years prior to such initial registration, the initial regulated rent)
plus in each case, any lawful increase and adjustments.
The order appealed herein was issued pursuant to the revocation of a
prior order by the Commissioner and the remanding of the proceeding to
be processed as a timely challenge to the initial registered rent. The
Commissioner's order and opinion had found that the March 6, 1985
overcharge complaint was timely, as based on an earlier filing by the
tenant which was returned to him by the DHCR but which was subsequently
timely refiled by the tenant.
In the order, the Administrator deemed the base date rent to be the rent
charged on October 1, 1980, even though the April 1, 1980 rent was
documented in the record. However, since the tenant has not filed a
petition, the Commissioner accepts the use of the October 1, 1980 rent
as the base rent.
The Commissioner further finds that the petitioner's reliance upon the
JRD decision is incorrect, since the case has no applicability to
overcharge proceedings that were filed after April 1, 1984, as was the
instant proceeding, and that even under that decision, April 1, 1980
would be the proper base date. Furthermore, the use of the October 1,
1980 rent as base rent excepted, the Administrator properly determined
the lawful rent and the amount of overcharges in each lease term
thereafter, in accordance with the amounts listed in the guidelines.
Accordingly, the owner's objection to the Administrator's order is
This order may, upon the expiration of the period in which the owner may
institute a proceeding pursuant to Article 78 of the Civil Practice Law
and Rules, be filed and enforced in the same manner as a judgment or not
in excess of twenty percent per month thereof may be offset against any
rent thereafter due the owner.
THEREFORE, pursuant to the Rent Stabilization Law and Code, it is
ORDERED, that this Petition be, and the same hereby is denied; and that
the Rent Administrator's order be, and the same hereby is, affirmed.
JOSEPH A. D'AGOSTA