EI 710039 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 ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO. EI 710039 RO
BECHTOLDT CORPORATION, DISTRICT RENT ADMINISTRATOR'S
DOCKET NO. EG 7-1-0004-RK
TENANTS: ALFRED AND WENDY HOE
PETITIONER
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On September 5, 1990 the above named landlord filed a petition
for administrative review of an order issued on August 3, 1990 by
a District Rent Administrator concerning the housing
accommodations known as 100 Jerusalem Avenue, Apartment 8C,
Hempstead, New York, wherein the Administrator determined that a
rent overcharge occurred.
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 petition for review.
This proceeding was commenced on December 8, 1989 upon the filing
of a general complaint of rent overcharge by the tenants. The
tenants stated they were not presented with a rental history.
In response to the tenants' complaint, the landlord submitted the
leases of the prior tenant and the current tenant.
In an order issued on March 6, 19 0 under Docket No. DL 7-1-
0041-R, the Administrator established the lawful stabilization
rent of $651.79 as of November 1, 1989 through March 31, 1990.
The Administrator determined that an overcharge of $558.27
including interest through March 31, 1990, had occurred and
assessed a fine of $250.00 on the landlord. The Administrator
directed the landlord to refund to the tenants a total of
$808.27.
On June 25, 1990, the landlord requested modification of the
Administrator's order on the basis that the Division of Housing
and Community Renewal (DHCR) granted Major Capital Improvement
(MCI) increases which had not been included in the calculations.
Further, the landlord requested reconsideration of the $250.00
fine on the owner.
After notice to both parties the Administrator on August 3, 1990,
issued an order, under review herein, amending his order under
Docket No. EG 7-1-0004 RK. By virtue of the revised
EI 710039 RO
calculations, which included the MCI increases, the Administrator
established the lawful stabilization rent at $664.27 as of
November 1, 1989 through March 30, 1990. The Administrator
continued the $250.00 fine on the landlord. The overcharges were
computed to be $334.85, including interest, through March 30,
1990 and the landlord was directed to refund $584.85 to the
tenants.
In its petition for administrative review the Bechtoldt
Corporation states that the complaint originally named Harding
and Thorton Inc. as the owner and during the pendency of the
proceeding the Administrator in error converted the complaint to
one against the petitioner.
After careful consideration, the Commissioner is of the opinion
that this petition should be denied.
First, the allegation raised by the owner in its petition or
administrative review is beyond the scope of review.
Administrative review is limited to facts or evidence before an
Administrator. The petitioner herein never raised this
allegation below and it is presented on appeal for the first
time. It must be noted, that throughout the proceeding below,
the petitioner was named as the owner and fully and vigorously
participated and defended the complaint. The petitioner received
adequate notice at every stage of the proceeding and all its due
process rights were protected. Every notice was sent to the
petitioner and responded to. At no point in the proceeding below
was the issue raised. Further, the petitioner later made an
application for reconsideration, which was granted. When this
application was made, there again was no mention of this issue.
Second, even if the substance of the petitioner's allegation were
to be considered, the Commissioner would deny this petition for
administrative review. Section 2500.2(g) of the Tenant
Protection Regulations defines the term "landlord" as "[a]n
owner, lessor, sublessor, assignee, proprietary lessee of a
housing accommodation in a structure or premises owned by a
cooperative corporation or association, or other person receiving
or entitled to receive rent for the use or occupancy of any
housing acommodation or an agent of any of the foregoing." Both
an owner and a managing agent fit this definition.
THEREFORE, pursuant to the Emergency Tenant Protection Act and
the Tenant Protection Regulations, it is
ORDERED, that the petition be, and the same hereby is, denied,
and that the Administrator's order be, and the same hereby is,
affirmed; and it is
FURTHER ORDERED, this order may upon the expiration of the period
in which the landlord may institute a proceeding pursuant to
Article 78 of the Civil Practice Law and Rules, be filed and
enforced by the tenant, who has vacated the premises, as a
judgment in the amount of $584.85 against the Bechtoldt
Corportion and/or Harding and Thornton, Inc., jointly and
severally.
EI 710039 RO
ISSUED:
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ELLIOT SANDER
Deputy Commissioner
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