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.EJ610120RO
: DRO DOCKET NO.BK610129R
Z.P.G. Realty Management, TENANT:Jose Noreiga
PETITIONER :
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ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
IN PART
On October 17, 1990, the above-named petitioner-owner filed a
Petition for Administrative Review against an order issued on
October 3, 1990, by a Rent Administrator, concerning the housing
accommodations known as 2766 University Avenue Bronx, New York,
Apartment No. 2B, wherein the Rent Administrator determined that
the owner had overcharged the tenant.
The Administrative Appeal is being determined pursuant to the
provisions of Section 2526.1 of the Rent Stabilization Code.
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
issues raised by the Administrative Appeal.
This proceeding was originally commenced on November 13, 1987 by
the filing of a rent overcharge complaint by the tenant, who had
assumed occupancy on September 1, 1987 at a rent of $468.41. In
answer to the complaint, the owner submitted a complete rental
history for the subject apartment.
In Order Number BK610129R, the Rent Administrator determined that
the tenant had been overcharged in the amount of $10,552.93,
including excess security and treble damages, and directed the
owner to refund such overcharge to the tenant. The order
determined overcharges from the commencement of the lease on
September 1, 1987 until August 31, 1990.
In this petition the owner states there is no record that the
complaining tenant ever lived in the apartment.
EJ610120RO
The Commissioner is of the opinion that this petition should be
granted in part.
The owner's claim that the tenant never lived at the subject
premises is incorrect; the owner's submission to the Administrator
of July 5, 1990 even includes Mr. Noriega's lease. However, DHCR
records reveal that the subsequent, and current, tenant, Dippolito
and Ysabel Calderon, have filed their own overcharge complaint,
commencing with their occupancy of the apartment on February 1,
1988, and that the Administrator's inclusion of overcharges owing
to Mr. Noriega until August 31, 1990 is incorrect. It is therefore
determined that Mr. Noriega vacated the apartment on or before
February 1, 1988. Limiting the complainant's tenancy to the 5
month period from September 1, 1987 to January 31, 1988, total
overcharges are reduced to $1,336.35 from $10,552.93 ($89.09 x 5
months + treble damages). In addition, the establishment of the
lawful rent for the period from September 1, 1989 to August 31,
1990 by the Administrator is hereby revoked since the tenant was in
fact not in occupancy of the subject apartment at that time. A
copy of this Opinion is being sent to the current tenant of the
subject apartment.
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 increases.
The Commissioner has determined in this Order and Opinion that the
owner collected overcharges of $1,336.35. This order may, upon
expiration of the period for seeking review of this Order and
Opinion pursuant to Article Seventy-eight of the Civil Practice Law
and Rules, be filed and enforced as a judgment. Where the tenant
files this Order as a judgment, the County Clerk may add to the
overcharge, interest at the rate payable on a judgment pursuant to
Section 5004 of the Civil Practice Law and Rules from the issuance
date of the Rent Administrator's order to the issuance date of the
Commissioner's Order.
EJ610120RO
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.
ISSUED:
JOSEPH A. D'AGOSTA
Deputy Commissioner
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