BG 110255 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


      ------------------------------------X 
      IN THE MATTER OF THE ADMINISTRATIVE :  ADMINISTRATIVE REVIEW
      APPEAL OF                              DOCKET NO. BG 110255 RO

                                          :  DISTRICT RENT OFFICE
                                             DOCKET NO. ZQ 001228 R
           Parman Corp.,                    
                                             TENANT: Elham Sarvdadi           
                

                            PETITIONER    : 
      ------------------------------------X                             


          ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
                                     IN PART

      On July 23, 1987, the above-named petitioner-owner filed a Petition for 
      Administrative Review against an order issued on July 6, 1987, by the 
      Rent Administrator, 92-31 Union Hall Street, Jamaica, New York, 
      concerning the housing accommodations known as 104-40 Queens Boulevard, 
      Queens, New York, Apartment No. 12Y, wherein the District Rent 
      Administrator determined that the tenant had been overcharged.

      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 in March 1985 by the filing of 
      a rent overcharge complaint by the tenant who stated he took occupancy 
      pursuant to a one year lease commencing December 1, 1984 and expiring 
      November 30, 1985 at a monthly rent of $690.25 which included two new 
      air conditioners and electricity charges for same.  Electricity is 
      included in the rent of the subject apartment.   The tenants asserted 
      that based on the prior rent of $527.65, the vacancy rent for the 
      subject apartment should be $650.23 including air conditioning and 
      improvements. 

      The owner stated that it calculated the rent of $690.25 pursuant to 
      Guidelines 16 under which it concluded that it was entitled to a 13.5% 
      increase over the prior rent of $527.65 (7.5% vacancy allowance and 6% 
      guideline increase) plus $51.35 for new equipment installed at a total 

      cost of $2054.00 (1/40 of $2054.00 = $51.35) and $40.02 for electricity 
      for 2 additional air conditioners.












          BG 110255 RO


      On April 20, 1987 the owner was directed by the DHCR to submit copies of 
      bills and cancelled checks to document the claimed improvements.  In 
      response the owner submitted the required documentary evidence for all 
      the items except for the air conditioners.

      In Order Number ZQ 001228 R, the District Rent Administrator determined 
      the initial stabilized rent of the complaining tenant to be $650.23 
      based on a $13.5% increase (6% guideline  and 7.5% vacancy allowance) 
      over the prior rental of $527.65 plus an increase of $51.35 for new 
      equipment installed prior to occupancy.  It further determined that a 
      rent overcharge of $1459.35 had occurred through July 31, 1987 including 
      interest on that portion of the overcharge occurring on and after April 
      1, 1984 and directed the owner to refund such overcharge to the tenant. 

      During the pendency of the instant proceeding, the tenant vacated but 
      forwarded his current address.

      In this petition, the owner contends in substance that the Rent 
      Administrator omitted the increase for electrical use for the two 
      additional air conditioners which were installed in December 1984.  
      Further, the Rent Administrator's increase for new equipment of $51.35 
      did not include 1/40th of the cost of the 2 new air conditioning units.  
      The owner submitted a pro-rated bill for $755.58 indicating the cost of 
      the 2 units and claiming an additional 1/40 increase of $18.89.  The 
      bill was not submitted to the Rent Administrator because the owner 
      stated it was requesting less than the full amount to which it was 
      entitled for the installation.

      In answer to the owner's petition, the tenants responded that they did 
      not know the owner was charging electrical fees for the 2 additional 
      units and had they had the option would not have accepted the 2 
      additional units.


      The Commissioner is of the opinion that this petition should be granted 
      in part.


      The owner is correct in its contention that electric charges for air 
      conditioners installed prior to October 1, 1985 (where electricity is 
      included in the rent) are included in the base rent and not listed as 
      separate charges which change annually as is true for such air 
      conditioners first installed on or after October 1, 1985.  An 
      examination of the records in this case discloses that the Rent 
      Administrator erred in not including the electrical fee of $19.43 for 
      each of the two air conditioners installed immediately prior to 
      occupancy by the tenants herein (1985 air-conditioning season annual fee 
      of $233.07).  The inclusion of the 2 air conditioner fees results in a 
      vacancy rent of $689.09 not $690.25 as the owner contends.

      The Commissioner rejects the owner's submission of the additional bill 






          BG 110255 RO

      for the actual cost of the installation of the two new air conditioners 
      to be used as the basis of an additional increase pursuant to Section 
      2522.4(a)(1) since an examination of the records in this case discloses 
      that in the proceeding before the Rent Administrator, the owner did not 
      submit the bill or claim the increase for the two air conditioners cost 
      although afforded an opportunity to do so and has not submitted a 
      reasonable excuse for its failure to do so.  Since this is not a de novo 
      proceeding the owner's submission cannot be considered for the first 
      time on appeal.

      With regards to the tenant's contention that the acceptance of the 2 
      additional air conditioners was a condition of rental, it is noted that 
      Section 2522.4(a)(1) of the Rent Stabilization Code, does not require 
      the owner to secure a tenant's consent for installation of new equipment 
      during a period of vacancy.  Further, the tenant did not raise the issue 
      of conditional rental in the proceeding before the Rent Administrator so 
      that this matter cannot properly be considered for the first time on 
      administrative appeal.

      Taking the aforementioned factors into account, the Commissioner has re- 
      calculated the lawful stabilization rent and amount of rent overcharge 
      for the subject apartment.  The lawful stabilization rent and amount of 
      rent overcharge are set forth on the amended rent calculation chart 
      attached hereto and made a part hereof.

      Because this determination concerns lawful rents only through      July 
      31, 1987, the owner is cautioned to adjust subsequent rents to an amount 
      no greater than that determined by this order plus any lawful increases, 
      and to register any adjusted rents with this order and opinion being 
      given as the explanation for the adjustments.


      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.


      THEREFORE, in accordance with the provisions of the Rent Stabilization 
      Law and Code, it is







      ORDERED, that this petition for administrative review be, and the same 
      hereby is, granted in part, and, that the order of the Rent 
      Administrator be, and the same hereby is, modified in accordance with 
      this order and opinion.  The lawful stabilization rents and the amount 
      of the rent overcharge are established on the attached chart which is 
      fully made a part of this order.  The amount of the rent overcharge 








          EC 410240 RO; EE 410281 RT

      through July 31, 1987 is $43.45.

      ISSUED:



                                                                    
                                      JOSEPH A. D'AGOSTA
                                      Acting Deputy Commissioner




                 
































                                  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 
          IN THE MATTER OF THE ADMINISTRATIVE :  ADMINISTRATIVE REVIEW
          APPEAL OF                              DOCKET NOS. EC 410240 RO
                                                             EE 410281 RT                                                                  



          EC 410240 RO; EE 410281 RT

                                              :  DISTRICT RENT OFFICE
               E. Roger Hotte,                   DOCKET NO. Z 057148
                     and                        
               Tricia Kelly,                     TENANT: Tricia Kelly         
                     

                                  PETITIONERS : 
          ------------------------------------X                             


          ORDER AND OPINION DENYING OWNER'S PETITION FOR ADMINISTRATIVE
                      REVIEW AND GRANTING TENANT'S PETITION FOR
                                ADMINISTRATIVE REVIEW


          On March 2, 1990, the above-named petitioner-owner filed a Petition 
          for Administrative Review against an order issued on January 30, 
          1990, by the Rent Administrator, Gertz Plaza, 92-31 Union Hall 
          Street, Jamaica, New York, concerning the housing accommodations 
          known as 120 East 73rd Street, New York, New York, Apartment No. 1B, 
          wherein the Rent Administrator determined the Fair market rent 
          pursuant to special fair market rent guidelines promulgated by the 
          N.Y.C. Rent Guidelines Board for used in calculating Fair market 
          rent appeals. 

          On May 11, 1990, the above-named petitioner-tenant refiled a timely 
          Petition for Administrative Review against the aforementioned order. 
          These petitions are being consolidated for disposition herein.

          The Administrative Appeal is being determined pursuant to the 
          provisions of Section 26-513 of the Rent Stabilization Law.

          The issue herein is whether the Rent Administrator's order was 
          warranted.

          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 tenant 
          objection to the April 1, 1984 registered rent by the tenant in     
          June, 1985.  The owner was served with a copy of the tenant's 
          complaint and submitted copies of bills, Building permits, Amended 
          certificate of occupancy, etc.  The owner stated in substance that 
          the tenant had violated the terms of her lease. 

          In Order Number Z 057148, the Rent Administrator adjusted the 
          initial legal regulated rent by establishing a fair market rent of 
          $403.67 and directing the owner to refund $27,639.30 in excess rent. 

          In the owner's petition, the owner contends in substance that the 
          Rent Administrator failed to consider the owner's submission of 
          improvements to the subject apartment and failed to grant a 1/40th 
          increase; that the Rent Administrator's order was based on an 
          erroneous assumption that the proceeding was a fair market rent 
          appeal (hereafter FMRA); that the owner was never served a notice 
          nor the tenant's FMRA application; and the apartment was enlarged by 
          243.75 square feet and constituted a new apartment as shown by the 







          EC 410240 RO; EE 410281 RT

          amended certificate of occupancy.  The owner resubmitted the 
          documents in support of it's contentions and requested that the 
          order be modified to include the increase for improvements.

          In the tenant's petition and in the tenant's response to the owner's 
          petition, the tenant stated in substance that the order should be 
          revoked as the tenant's vacancy rent had been established under a 
          previous order CDR 00696 as amended by ART 00832 L issued September 
          30, 1986; the apartment's rent was not subject to a FMRA and that 
          the tenant had not filed a FMRA but an objection to the registered 
          rent as an overcharge.

          Subsequently, the owner through his attorney stated in substance 
          that both petitions should now be dismissed because the matter had 
          already been litigated under docket ART 00832 L.

          The Commissioner is of the opinion that the tenant's petition should 
          be granted and that the owner's petition should be denied.

          An examination of the record in this case discloses that the tenant 
          had filed a complaint of Rent overcharge under docket TC 68148 G and 
          an order CDR 00696 was issued September 5, 1984 finding that the 
          apartment was exempt during the prior tenancy and that the tenant 
          was the fist Rent Stabilized tenant with the right to file a FMRA.  
          The tenant filed a request for reconsideration and the order was 
          amended under review docket ART 00832-L issued May 13, 1986 and 
          modified September 30, 1986 determining that the prior tenant was 
          not exempt from regulations but was the first rent stabilized tenant 
          with an initial rent of $350.00 which rent constituted the base rent 
          for the calculation of the complainant's vacancy rent.  The final 
          order of the Commissioner issued September 30, 1986 established the 
          tenant's vacancy lease rent at $397.00 effective December 1, 1980 
          and directed the owner to refund $36,940.74 including interest from 
          April 1, 1984 through April 30, 1986.  

          Since the Commissioner's order under docket ART 00832ZL found that 
          the tenant herein was not the first rent stabilized tenant and 
          established the lawful stabilization rent for the subject apartment 
          and since in the instant proceeding the tenant did not file a FMRA 
          but rather a rent overcharge complaint, the Rent Administrator's 
          order herein establishing a fair market rent must be revoked.  The 
          Commissioner's order and opinion issued on September 30, 1986 under 
          docket ART 00832L remains in full force and effect.

          With regard to the owner's contention that the Rent Administrator 
          failed to consider increases to the tenant's rent for renovations to 
          the subject apartment which were done in 1978, the Commissioner 
          determines that the owner is estopped from introducing such evidence 
          as it constitutes a collateral attack on the Commissioner's prior 
          order issued September 30, 1986 and therefore can not be considered 
          in this proceeding.

          Accordingly, the Rent Administrator's order establishing the 
          complainant's vacancy rent utilizing the FMRA procedures was not 
          warranted.

          THEREFORE, in accordance with the provisions of the Rent 
          Stabilization Law and Code, it is


          EC 410240 RO; EE 410281 RT


          ORDERED, that the tenant's petition for administrative review be, 
          and the same hereby is, granted; that the owner's petition for 
          administrative review be, and the same hereby is, denied, and, that 
          the order of the Rent Administrator be, and the same hereby is, 
          revoked and that the Commissioner's order and opinion issued under 
          docket number ART 00832 L finding a total rent overcharge of 
          $36,746.74 remains in full force and effect.

          ISSUED:



                                                                        
                                          JOSEPH A. D'AGOSTA
                                          Acting Deputy Commissioner




                     



































    

TenantNet Home | TenantNet Forum | New York Tenant Information
DHCR Information | DHCR Decisions | Housing Court Decisions | New York Rent Laws
Disclaimer | Privacy Policy | Contact Us

Subscribe to our Mailing List!
Your Email      Full Name