STATE OF NEW YORK
DIVISION OF HOUSING AND COMMUNITY RENEWAL
OFFICE OF RENT ADMINISTRATION
92-31 UNION HALL STREET
JAMAICA, NEW YORK 11433
------------------------------------X S.J.R. 6254
IN THE MATTER OF THE ADMINISTRATIVE : ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO. FC 110115-RT
: DISTRICT RENT OFFICE
Mark Adelson, DOCKET NO. BB 110020-R
ORDER AND OPINION REMANDING THE PROCEEDING TO THE RENT
On March 8, 1991, the above-named petitioner-tenant filed a
Petition for Administrative Review against an order issued on
February 7, 1991, by Rent Administrator, concerning the housing
accommodations known as 23-15 30th Avenue, Astoria, New York,
Apartment No. A1, wherein it was determined that the owner had
overcharged the tenant.
Subsequent thereto, the petitioner-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
determination of the petitioner's administrative appeal.
The Administrative Appeal is being determined pursuant to the
provisions of Section 2522.4 of the Rent Stabilization Code.
The issue herein is whether the Rent Administrator's order was
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.
The tenant originally commenced this proceeding by filing a
complaint of rent overcharge on May 20, 1987. The tenant assumed
occupancy in March, 1986 at a rent of $728.00 per month. In the
complaint, the tenant stated that the former tenant had paid a
rent of $322.27, but that, in addition to the guidelines and
vacancy increases, the owner had added a monthly charge of $334.39
for the cost of kitchen improvements. The tenant doubted that
these improvements - which computed to an overall cost of
$13,000.00 - were ever made. The tenant then demanded an
inspection to verify the actual value of the owner's claim.
The owner was served with a copy of the complaint and was directed
to submit a complete rental history. The owner was advised that
if it claimed a rent increase for the installation of new
equipment, it was required to submit invoices showing the cost and
date of installation.
In response, the owner submitted the lease history and the initial
registration form documenting the initial rent of the subject
premises at $322.27 per month, as well as a one page invoice from
a contractor listing various improvements and repairs to the
apartment at a total cost of $13,376.00. The owner also stated
that the complaint failed to mention that there was a tenant prior
to the complainant, who lived in the apartment from April, 1985 to
March, 1986 at a rent of $700.00 per month. Also included was a
copy of the cancelled check to the contractor, for the full amount
claimed, dated April 30, 1985, and a copy of the lease for the
prior tenant at a rent of $700.00 per month. Finally, the owner
included a DHCR order partially approving an MCI application, for
which it had recently filed a PAR.
On November 26, 1990 the Administrator sent a Final Notice and
preliminary findings of rent overcharges in the amount of
$6,047.40, including treble damages and excess security.
In a letter dated December 7, 1990, the tenant's attorney
questioned the basis for the Administrator's preliminary
determinations, especially the claimed cost of the improvements.
Copies of all invoices, cancelled checks and other submissions
regarding this claim were requested. The Administrator
subsequently forwarded this material to the tenant's attorney.
By order dated February 7, 1991, the Rent Administrator determined
that the tenant had been overcharged in the amount of $5,956.99,
including treble damages for overcharges after April 1, 1984. The
Administrator allowed a monthly increase of $296.90 of the claimed
equipment costs (or for $11,876.00 out of the claim for
$13,314.75), but disallowed the costs of the broken plaster
removal and sheet rock installation because it was maintenance and
In his petition, dated March 6, 1991, the tenant disputes the
amount awarded for the new equipment and contends that the
Administrator improperly failed to consider its objection to the
claim. The petitioner also submitted a verified affidavit from an
architect that challenged specific items listed on the invoice as
inaccurate and possibly fraudulent. The petitioner strongly
objected to the Administrator's failure to conduct its own
inspection of the apartment, which the tenant had requested on
more than one occasion.
In its answer, the owner contends that the tenant's petition
should be dismissed because the cost of all of the items claimed
by the owner were documented, and have previously been acceptable
as 20(c)(1) improvements by the DHCR, including the labor costs
for removing the items being replaced.
The Commissioner is of the opinion that this proceeding should be
remanded to the Rent Administrator for a new determination.
At the outset, the record establishes that, in addition to
requesting a general review of the rent history, the tenant had
specifically objected to the owner's claim for the costs of
improvements to the kitchen. The tenant asked that an inspection
be conducted by the DHCR to determine the accuracy of this claim.
In subsequent letters to the Administrator, the tenant reiterated
his request for an inspection, and requested copies of all
invoices and cancelled checks. In spite of this, the
Administrator apparently relied upon the owner's one page contract
with the contracting company as reliable proof of cost
expenditures and work performed, and only disallowed about
$2,000.00 of the claim as maintenance and repair. But this
superficial review is inadequate, especially since it fails to
address the core of the tenant's objection. Furthermore, the
contract itself is too general to permit close scrutiny. For
instance, there is no cost breakdown or listing of make and model
numbers for each item of equipment or for the cost of labor.
Additionally, further investigation is required, including an
inspection, to determine whether the items claimed were actually
installed. In this regard, the architect's report submitted by
the tenant would be useful for points of comparison.
THEREFORE, in accordance with the provisions of 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 adjustment pursuant to
lease renewals, until the Administrator issues a new Order upon
JOSEPH A. D'AGOSTA
Acting Deputy Commissioner