STATE OF NEW YORK
DIVISION OF HOUSING AND COMMUNITY RENEWAL
OFFICE OF RENT ADMINISTRATION
92-31 UNION HALL STREET
JAMAICA, NEW YORK 11433
------------------------------------X SJR No: 6712
IN THE MATTER OF THE ADMINISTRATIVE : ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO. ED610090RO
: DISTRICT RENT OFFICE
Manuel Vagueiro, DOCKET NO. 19093
TENANT: Bridget Barbaro
ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
On April 10, 1990, the above-named owner filed a Petition for
Administrative Review against the above-referenced order of a Rent
Administrator issued on March 20, 1990, concerning the housing
accommodations known as 1864 Wallace Avenue, Bronx, New York, Apartment
1A, in which order the Administrator determined the fair market rent
pursuant to the special fair market guideline promulgated by the
New York City Rent Guidelines Board for use in calculating fair market
This proceeding originated with the 1984 filing of a Tenant's Objection
to Rent/Services Registration in which the tenant indicated that her
objection was a fair market rent appeal.
In response the owner submitted rental records, adding the comments that
a three-year lease had commenced on February 1, 1981 for $351 monthly,
that "[p]art of 1984 & 1985 [the tenant] refused the lease renewal and
refused the increase," that in May of 1986 a two-year lease had
commenced that called for $373.81 monthly, and that the tenant was
currently (February 15, 1990) paying $396.24.
The ensuing order, here appealed, states inter alia: that a copy of the
tenant's Fair Market Rent Appeal was served on the owner, along with
forms to fill out, but that the owner has failed to "respond with the
necessary data"; that in the absence of "competent evidence . . .
establishing rents generally prevailing for substantially similar
housing accommodations in the same area," the tenant's "fair market
rent" will be determined solely by reference to a special guidelines
order promulgated by the New York City Rent Guidelines Board for use in
determining such rent; that the owner must "make a renewal lease offer
to the tenant between 120 [and] 150 days, before the old lease expires,
which offer the tenant must accept within 60 days if she wishes to
remain in occupancy; that from February 1, 1981 through April 30, 1986
the tenant paid $351 per month; that the owner was entitled to an "MCI"
rental increase effective December 1, 1986; that starting on May 1,
1988, the tenant paid $442.68 monthly; and that the tenant had paid
excess rent of $8,120.68 including excess security of $73.36 through
March 31, 1990.
The instant petition to review this order states in pertinent part: (1)
that the owner did indeed "respond with the necessary data," as whenever
he "received any forms [he] would answer the forms," (2) that the
tenant's leases having been voluntary, binding agreements, it is "not
fair, 10 years later[,] to try to collect money back from the landlord,"
(3) that the owner cannot offer a new lease because, pending the
resolution of "this problem," he does not know what rent to charge, (4)
that the tenant deposited $300 as security when she entered into
occupancy, and "never updated it," so that there was no excessive
deposit at the time of the Administrator's order and (5) that the tenant
actually paid the following rents (inter alia): $345 monthly in January
and February of 1983 and from April, 1983 through March of 1985; $339 in
March of 1983; $300 (having refused to sign a lease) from April 1985
through April 1986; and $396.24 (refusing to sign a lease) from May 1,
1988 to the "present."
The tenant has answered the petition, stating in pertinent part that the
security deposit was indeed updated, and that if the tenant had not been
"paying the correct rent[,] she would have been evicted by the court."
In December, 1992, petitioner sent the Commissioner copies of: letters
on the letterhead of "Zworski's Counselling and Information Services,
Inc.," (a) covering June, and August through December, 1984, in each of
which Donal Zworski, the tenant's "Legal Social Worker," stated: "Dear
Mr. Vagueiro: Enclosed herewith please find a money order in the amount
of $345.00 for [the tenant's] rent for the month of [one of the
aforementioned]," (b) reflecting the enclosure of $345 for March, 1985,
and (c) reflecting, for the period from April, 1985, through April 1986
(except for August and March), the enclosure of $300 per month; and a
money order made payable to the owner from the tenant, dated April 3,
1986, in the amount of $300.
In response to that submission, the tenant states in pertinent part:
"Judge Klein took $6.00 off from the rent, for Con Ed. The rent went
from $351.00 to $345.00 * * * . . . Con Ed told me . . . to deduct from
the bill. Mrs. [Z]wo[r]ski and myself sent Mr. Vegueiro a notice, that
said if he didn't disconnect the wires from my meter, that we were going
to deduct $45.00 fro[m] the next bill."
In response, finally, to the previously mentioned tenant's answer to the
instant petition, the owner has submitted: a copy of a 1984 order of the
Housing Court, in an action between the owner and tenant herein, stating
inter alia that "[t]he rent is now $345.00 commencing February 1, 1984,"
with an accompanying receipt covering April and May of that year; and a
copy of the tenant's complaint of decreased services (docket number
CI610480S), of September, 1988, in which the tenant reports her "current
rent" to be $396.24.
After careful consideration of the record, the Commissioner is of the
opinion that this petition should be granted in part.
Petitioner's first pertinent assignment of error, as noted above, is
that the Administrator erred in stating that the owner had "failed to
respond with the necessary data." The Commissioner, however, reads the
Administrator's statement as referring specifically to the comparable
rents method of determining "fair market rent." The disputed language
means only that the owner failed to supply the evidence of other rents
required for the Administrator to use that method, so that the lawful
initial stabilized rent had to be determined, as it properly was,
pursuant solely to the other, "special-guidelines," method. In saying
that, the Administrator did not err.
Petitioner's next argument (number (2) on page 2 above) is an attack on
the concept of rent regulation, whoich has been upheld by the courts and
the legislature. Simply stated, the Rent Stabilization Law does not
provide for the approval of a rental amount merely because it is
embodied in a voluntarily signed lease. Rather all rent increases must
be in accordance with rent stabilization guideline.
Turning to petitioner's contention that he cannot offer a lease because
he does not know what to charge therein, the Commissioner finds no
merit in that argument. The correct procedure was to roll back the
rent, forthwith, to the level determined by the Administrator, pending
any later adjustment by the Commissioner pursuant to the owner's
Regarding the security deposit, the tenant contests petitioner's
assertion that the amount actually deposited was never raised, renewal
leases recite that it was increased, and petitioner provides no
substantiation for his statement that it never rose above $300. The
Commissioner will therefore deem security to have been deposited in the
amount of the highest monthly rent that the tenant actually paid.
Petitioner finally quarrels with the Administrator's excess rent
calculation, his basic argument being that the rents the tenant actually
paid were appreciably lower than what the leases reflect, resulting in
an inflated excess rent total. Petitioner is correct. The tenant's own
statements reflect rental decreases in 1984 and "85 - 86," to $345 and
$300, respectively. In response to petitioner's extensive
documentation, summarized above, of his assertions regarding rents paid,
the tenant reconfirmed (see page 2 above) that the rent indeed went from
$351 to $345, and that later she threatened to deduct another $45
Based on the above, and specifically on the quoted notation in the
aforementioned Housing Court order, the attached calculation chart --
hereby incorporated in this Order and Opinion -- reflects a monthly rent
of $345 starting in February, 1984 (there being no verification of an
earlier date). It does not reflect that the tenant only paid $339 in
March of 1983, as the record contains no basis for petitioner's
assertion in that regard. The chart does reflect a $300 rental from
April, 1985, through April, 1986, the tenant herself having adverted to
same and petitioner having documented it.
The chart finally reflects an actual rental of $442.68 from May through
August of 1988, and a decrease to $396.24 for the remainder of the
period covered by the Administrator's order.
The owner mentioned $396.24 in his original answer to the complaint and
has again in this petition; the tenant has not specifically denied
paying that amount, and she herself reported it as her rental in the
aforementioned services complaint. The record, however, provides no
basis for determining that she paid it before September of 1988.
For the reasons stated above, the amount of excess rent found herein
differs from that found by the Administrator.
In the event the owner does not take appropriate action to comply with
this order within sixty (60) days from the date of issuance of this
order, the tenant may credit the excess rent collected by the owner
against the next month(s) rent until fully offset.
The owner is directed to reflect the findings and determinations made in
this order on all future registration statements, including those for
the current year if not already filed, citing this order as the basis
for the change. Registration statements already on file, however,
should not be amended to reflect the findings and determinations made in
this order. The owner is further directed to adjust subsequent rents to
an amount no greater than that determined by this order plus any lawful
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 Rent Administrator's order be, and the same hereby is
modified in accordance with this order and opinion. The total amount of
excess rent through March 31, 1990 is $8,074.20.
JOSEPH A. D'AGOSTA