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 ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.:
JEFFREY ROY, DISTRICT RENT
PETITIONER CB 410256-R
ORDER AND OPINION REMANDING PROCEEDING TO THE
On November 9, 1990, the above-named tenant filed a Petition for
Administrative Review against an order issued on October 30, 1990
by a Rent Administrator concerning housing accommodations known
as Apartment 802 at 300 West 49th Street, New York, New York,
wherein the Administrator determined that the tenant had not been
The issue in this appeal is whether the District Rent Adminis-
trator's order was warranted.
The applicable sections of the law are Section 26-516 of the Rent
Stabilization Law and Section 2522.6 of the current Rent
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 administrative appeal.
This proceeding was originally commenced by the filing of a rent
overcharge complaint by the tenant on February 8, 1988.
The tenant took occupancy pursuant to a one-year lease commencing
on August 1, 1986, and expiring July 31, 1987, at a monthly rent
of $1,082.06. The complaint alleged that the amount of a recent
MCI increase was incorrectly based upon her apartment having four
rooms, when in fact, the apartment is smaller. The tenant
included a hand-drafted floor plan of the apartment on which only
two rooms were indicated.
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. The answer made no reference to the number of rooms in
In Order No. CB 410256-R issued on October 30, 1990, the District
Rent Administrator determined that the initial legal registered
rent of $900.00 had been lawfully increased to $1,137.98 in
accordance with the orders of the Rent Guidelines Board, and that
there were no overcharges of the tenant's rent. The order noted
that the April 1, 1984 registration showed that the apartment has
four rooms and since this was not challenged, the count remains.
In her petition, dated November 9, 1990, the tenant restates her
challenge to the room count for her apartment, and requests a
The Commissioner is of the opinion that this proceeding should be
remanded to the administrator for a determination on the actual
size and room count of the subject apartment.
In order to determine the number of rooms in an apartment, the
Division has promulgated the following definition of a room:
1.A windowless kitchen containing at least 59
2.An enclosed area with window containing at least
60 square feet.
3.An enclosed area without window containing at
least 80 square feet.
4.Does not include bathroom, walk-in closet, etc.
The tenant's complaint alleges that the calculation of several
MCI rent increases is incorrect as based upon an incorrect room
count for the apartment. Since the entire basis for the tenant's
overcharge claim is that the incorrect room count was resulting
in excessive MCI increases, the Administrator's determination
that there were no overcharges without establishing the actual
room count of the apartment was improper. Furthermore, a review
of the room count is not time-barred by the tenant's failure to
timely challenge it in the initial registration; it is a fact
that may be necessary to the determination of the legal regulated
rent and, in accordance with Section 2522.6 of the Rent
Stabilization Code, the DHCR may review it ". . .upon written
request of either party, or on its own initiative. . ."
However, a review of the Division's records fails to establish
with certainty the number of rooms in the subject-apartment.
Although the subject-apartment and another apartment in the same
line, #702, are both listed as having four rooms on their
registration statements, there is another apartment in that line,
#602, that is registered for only three rooms. Therefore, as the
record is insufficient to make a final determination on the room
count, the proceeding is hereby remanded to the Administrator for
that purpose. Subsequently, the Administrator shall determine
the accuracy of the MCI increases in accordance with his findings
and reissue the order.
THEREFORE, in accordance with the Rent Stabilization Law and
Code, it is
ORDERED, that the tenant's petition be, and the same hereby is
granted in part and that the proceeding be, and the same hereby
is, remanded to the Rent Administrator in accordance with this
order and opinion.