EL410404RO
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
------------------------------------X S.J.R. 6586
IN THE MATTER OF THE ADMINISTRATIVE ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.: EL410404RO
Rosa Pacifico, DRO DOCKET NO.: BK210085R
TENANT: Frederick & Edna
PETITIONER Rossi
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ORDER AND OPINION REMANDING PROCEDURE FOR FURTHER PROCESSING
On December 21, 1990, the above-named petitioner-owner filed a Petition
for Administrative Review against an order issued on November 18, 1990
by a Rent Administrator, concerning the housing accommodations known as
174 Frost Street, Brooklyn, New York, Apartment No. 1R, wherein the Rent
Administrator determined that the owner had overcharged the tenant.
Subsequent thereto, the tenant filed a petition in the Supreme Court
pursuant to Article 78 of the Civil Practice Law and Rules, in the
nature of mandamus, for a judgment directing the DHCR to render a
determination of the petitioner's administrative appeal. By order
issued by Justice Aronin the tenant's petition was granted to the extent
of directing the DHCR to determine the owner's administrative appeal no
later than March 17, 1993.
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 issue
raised by the administrative appeal.
This proceeding was originally commenced by the filing on November 9,
1987 of a rent overcharge complaint by the tenant. The tenant assumed
occupancy of the apartment pursuant to a one year lease commencing
September 1, 1987 at a rent of $397.25.
In answer to the complaint, the owner stated that the tenant in the
apartment from April 1, 1985 to March 30, 1986 was Mary Wright, who paid
rent of $350.00 per month. Thereafter, it was occupied by Carmine and
Emily Leone, who also paid $350.00 per month, and resided there from May
1, 1986 to april 30, 1989. A copy of the lease for the Leones was
submitted with the answer, but not the lease for Mary Wright.
In a later submission, dated July 16, 1990, the owner stated that the
tenant in residence prior to 1985, Michael Biondo, was rent controlled,
EL410404RO
and that subsequent tenant was the owner's granddaughter Ms. Wright, who
resided there without a lease from April 1, 1985 to March 30, 1986 at a
rent of $350.00 per month. The owner also claimed that extensive
repairs and renovations were made during Ms. Wright's tenancy but did
not include documentation. Finally, the owner stated that Carmine and
Emily Leone, who assumed occupancy on May 1, 1986, were the first
stabilized tenants. Enclosed with the owner's letter was a copy of a
three-year lease for Mr. Biondo, extending from September 1, 1981 to
August 31, 1984 at a monthly rent of $175.50.
In Order Number BK210085R, the Rent Administrator established a lawful
rent of $217.44 for the complainant's initial lease, effective September
1, 1987, determined that the tenant had been overcharged and directed a
refund to the tenant of $19,843.46 including treble damages. The order
also stated that the initial registered tenant paid rent of $175.50 per
month on April 1, 1984.
In this petition, the owner contends that the order failed to take into
consideration the fact that the apartment was rent controlled until
April, 1985 and that the owner was therefore eligible for fair market
value increase as well as an increase for "modernization." In addition,
the owner protests the Administrator's omission of an approved MCI
increase from the rent calculations, and the imposition of treble
damages.
The tenant replied that the petition was devoid of merit and substance,
and that the Administrator's order should be affirmed.
The Commissioner is of the considered opinion that this proceeding
should be remanded for further processing.
An examination of the record reveals that the owners rental history is
at variance with the registration statements on file with the DHCR. For
example, the one year vacancy lease for Mr. and Mrs. Carmine Leone
commencing May 1, 1986 appears to be valid, but the registrations for
1986 and 1987 name Mary Wright as the tenant over approximately the same
period pursuant to a renewal lease not cited by the owner in its rental
history. For another instance, the 1985 registration states that the
initial registered tenant executed a renewal lease at a rent of $196.03,
but the owner failed to submit that lease to the Administrator. Most
significant, however, is the owner's claim that the tenant in occupancy
when the owner filed the initial registration in 1984 (Biondo) was rent
controlled. The lease submitted by the owner does not specify the
tenant's status, and the owner submits no documentation to support this
claim. In addition, the 1984 and 1985 registration statements list that
tenant as rent stabilized.
The proceeding must therefore be remanded to the Administrator for a
complete investigation of the rental history, including the status of
the tenant who was in occupancy on April 1, 1984. The owner should be
afforded an opportunity which was not afforded by the Administrator to
explain the contradictions and inconsistencies that are apparent when
comparing the actual leases with the registration statements for the
same period.
In making its new determination, the Administrator must include the rent
increase from the owner's MCI order issued under docket number
DC210213OM on August 6, 1990. Finally, the Administrator must make a
new determination on whether overcharges collected by the owner, if any,
EL410404RO
were willful and, if so determined, to impose treble damages.
THEREFORE, in accordance with the Rent Stabilization Law and Code, it is
ORDERED, that this petition be, and the same hereby is granted to the
extent of remanding this proceeding to the District Rent Administrator
for further processing in accordance with this order and opinion. The
automatic stay of so much of the District Rent Administrator's order as
directed a refund is hereby continued until a new order is issued upon
remand. However, the Administrator's determination as to the rent is
not stayed and shall remain in effect, except for any adjustments
pursuant to lease renewals, until the Administrator issues a new Order
upon remand.
ISSUED:
JOSEPH A. D'AGOSTA
Deputy Commissioner
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