Docket No. EI 210159-RT
STATE OF NEW YORK
DIVISION OF HOUSING AND COMMUNITY RENEWAL
OFFICE OF RENT ADMINISTRATION
92-31 UNION HALL STREET
JAMAICA, NEW YORK 11433
IN THE MATTER OF THE ADMINISTRATIVE S.J.R. No. 5693
ETHEL GERVANT, DOCKET NO.: EI 210159-RT
DISTRICT RENT ADMINISTRATOR'S
DOCKET NO.: BH 210438-R
ORDER AND OPINION ON REMAND GRANTING PETITION
FOR ADMINISTRATIVE REVIEW IN PART
On September 25, 1990, the above named petitioner-tenant filed a
Petition for Administrative Review against an order issued on
September 13, 1990, by a Rent Administrator concerning
accommodations, known as Apartment E-21 at 2425 Kings Highway,
Brooklyn, New York, wherein the Administrator determined that
there had been no overcharges of the tenant's rent and terminated
On March 26, 1991, the Commissioner issued an order and opinion
denying the tenant's petition.
Subsequently, the tenant sought judicial review in the Supreme
Court of the State of New York pursuant to Article 78 of the Civil
Practice Law and Rules.
After consideration of the Article 78 petition, the Court (Hon. B.
Hurowitz, Kings County) issued an order on October 22, 1991
remitting the proceeding to the New York State Division of Housing
and Community Renewal for further consideration in conjunction
with the incorporation of a supplementary petition by the tenant
that was received by the Division on October 24, 1990, but was not
considered in the Commissioner's opinion.
Subsequently the owner was served with the supplementary material
and afforded an opportunity to respond within 20 days from date of
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 on August 18, 1987.
Docket No. EI 210159-RT
The tenant took occupancy pursuant to one-year lease commencing
July 1, 1979, and expiring July 30, 1980, at a monthly rent of
$275.00. The complaint also stated that the rent on March 31,
1980 was $275.00. The tenant participates in the Section 8 rent
The owner was served with a copy of the complaint and was directed
to submit a complete rent history from the base date, including
copies of all leases. The owner complied with this request.
In Order Number BH 210438-R, issued September 13, 1990, the
District Rent Administrator determined that the initial legal
registered rent of $420.59 had been lawfully increased to $555.79
in accordance with the orders of the Rent Guidelines Board, and
that there were no overcharges of the tenant's rent.
In her petition, dated September 25, 1990, the tenant challenges
the Division's determination of the legal rent as based on the
Administrator's failure to consider the D.H.C.R. order dated July
8, 1987, directing a rent reduction due to the reduction of
various services in the apartment. This order was affirmed by the
Commissioner in Administrative Review Opinion BH 210145-RO, issued
on November 16, 1990. The petition states that, pursuant to the
rent reduction order, the tenant's rent was frozen at the reduced
legal rent directed by the reduction order, and that the
Administrator erred by granting any guidelines increases at all.
Also challenged is the denial of the tenant's request for a lease
with a legal rent of $110.00 per month, which is the tenant's
contribution under the Section 8 Program.
In the supplementary submission of October 24, 1990, the tenant
maintains that the order finding no overcharges should be
reversed, since the service reduction order, which is still in
effect, permits no rent increases. Furthermore, the tenant
contends that the resulting refund of overcharges must be
allocated proportionately between the tenant and the New York City
In its response to the tenant's petition, the owner disputes that
the tenant has signed any leases since 1985, and contends that the
legal rent is not $110.00 per month because this is only the
tenant's share of the rent in the Section 8 Program. The owner
also contends that the tenant has refused its offer for a new
refrigerator, as per the service reduction order, and that a
holdover proceeding has been instituted by the owner in Civil
The Commissioner is of the opinion that this petition should be
granted in part.
In the instant case, the tenant challenges the determination that
the tenant has paid no overcharges on the basis of the
Administrator's failure to incorporate a rent reduction order for
Docket No. EI 210159-RT
reduced services in his calculations.
Section 2523.4 of the Rent Stabilization Code provides in
pertinent part that a tenant may apply to the D.H.C.R. for a
reduction of the legal regulated rent to the level in effect prior
to the most recent guidelines adjustment, and the D.H.C.R. shall
so reduce the rent for the period for which it is found that the
owner failed to maintain required services. The tenant is
therefore correct that since the Division issued a reduction order
under docket no. AK 210465-S on July 8, 1987, which was
subsequently upheld by the Commissioner in Opinion No. H 210145-
RO, it was incumbent upon the Administrator to include it in any
calculation of the lease history for a determination of
overcharges. Thus the owner collected overcharges in the amount
of the rent collected in excess of $420.59 (the rent in effect
prior to the guidelines adjustment prior to the effective date of
the reduction order), and the Administrator's failure to include
this in his calculations was incorrect. As documented in the rent
calculations chart affixed hereto and made a part hereof, this
amount is $13,038.77, including treble damages and excess
However, the other issue raised in the petition, namely the
tenant's request for the proportionate allocation of refundable
overcharges between the tenant, who participates in the Section 8
rent subsidy program, and the New York City Housing Authority,
must be resolved in accordance with the Administrator's
determination that no such overcharges are due the tenant.
Throughout the entire period under review, the tenant's share of
the total rent has not been in excess of $110.00 per month, which
is less than the adjusted legal rent of $420.59 as so stated in
this opinion. The Commissioner has previously held that in such a
case, any rent overcharge must be refunded to the New York City
Housing Authority. [Accord: ARL 09014-B].
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 as a judgment
by the New York City Housing Authority or not in excess of twenty
percent per month thereof may be offset against any rent
thereafter due the owner by the New York City Housing Authority.
THEREFORE, in accordance with the Rent Stabilization Law and Code,
ORDERED, that the tenant's petition be and the same hereby is
granted in part, and that the Administrator's order be and the
same hereby is modified in accordance with this order and opinion.