ADM. REVIEW DOCKET NO.: EL810148RO
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.: EL810148RO
DISTRICT RENT
ADMINISTRATOR'S DOCKET
NO.: WY86S194R/WY86S96RV
D. S. SHKRELI
PETITIONER
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On December 6, 1990, the above-named petitioner-owner timely
filed a Petition for Administrative Review of an order issued on
November 1, 1990, by the District Rent Administrator, 55 Church
Street, White Plains, New York, concerning the housing
accommodations known as 485 Bronx River Road, apartment A-30,
Yonkers, New York.
The issue in this proceeding is whether the District 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 commenced on July 23, 1986 by the tenant's
filing of a rent overcharge complaint.
On November 1, 1990 the District Rent Administrator issued
order number WY86S194R/WY86S96RV finding that an overcharge had
occurred. The finding was based on the owner's failure to register
the subject apartment for the years 1984 through 1990. In
addition, the Administrator found the owner had failed to submit a
prior lease. Therefore, the Administrator established the rent
using that of a comparable apartment.
On appeal the owner states, in substance, that the Rent
Administrator established the sum of $415.02 as the initial
rent for the subject apartment "without affording the petitioner an
opportunity to be heard." Accordingly, the owner contends "the
determination was made without regard to procedural due process."
ADM. APPEAL DOCKET NUMBER: EL810148RO
In response to this petition, the tenant stated that treble
damages should have been imposed.
After careful consideration of the entire evidence of record,
the Commissioner is of the opinion that the appeal should be
denied.
A review of the record reveals that the owner was served with
the tenant's complaint and responded to same. In particular, the
owner submitted a copy of the requested lease prior to the owner's
proprietary lease. The rent of the prior lease was lower than the
rent used in calculating the rent overcharge. Specifically, the
lease in effect prior to the proprietary lease had a rent of
$401.67 which was paid by the petitioner for the months of December
1983 and January 1984. The guidelines increase for October 1, 1983
through September 30, 1984 was 0%. Accordingly, the owner was not
prejudiced by the Administrator's failure to consider the prior
lease.
It is undisputed that the subject apartment was never
registered.
The owner contends that a determination was made without
affording the petitioner an opportunity to be heard and to confront
the witnesses presenting evidence against him. Section 2507.5 of
the Tenant Protection Regulations states, in part: "At any stage
of a proceeding the Division may...grant or order a hearing."
Thus, the granting of a hearing is discretional. The Commissioner
hereby finds that that discretion was not abused in this
proceeding. Furthermore, the Commissioner notes that there were no
witnesses.
Finally, the Commissioner notes that the tenant's request for
treble damages could only have been raised in a timely petition for
administrative review. Accordingly, it is beyond the scope of
review.
THEREFORE, in accordance with the Tenant Protection
Regulations and the Emergency Tenant Protection Act, it is
ORDERED, that this petition be, and the same hereby is denied,
and the District Rent Administrator's order be, and the same hereby
ADM. APPEAL DOCKET NUMBER: EL810148RO
is affirmed.
ISSUED:
JOSEPH A. D'AGOSTA
Deputy Commissioner
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