FC 410292 RO
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 SJR No. 6357
IN THE MATTER OF THE ADMINISTRATIVE : ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO. FC 410292 RO
: DISTRICT RENT OFFICE
DOCKET NO. CC 410148 RP/
74786-G
Shaw Realty Mgmt. Co.,
TENANT: Jamie Silverstein
PETITIONER :
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On March 26, 1991, the above-named petitioner-owner filed a Petition for
Administrative Review against an order issued on February 22, 1991, by
the Rent Administrator, Gertz Plaza, New York, concerning the housing
accommodations known as 115 West 104th Street, New York, New York,
Apartment No. 42, wherein the Rent Administrator determined that the
owner had overcharged the tenant.
Subsequent thereto, the tenant filed a mandamus proceeding pursuant to
Article 78 of the CPLR. By stipulation dated May 29, 1992, the Article
78 proceeding was withdrawn or condition that the DHCR issue an order
within 110 days of May 29, 1992.
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 of a rent
overcharge complaint by the tenant. The owner was served with a copy of
the tenant's complaint and submitted a complete rental history as
required. In answer the owner stated that the subject apartment was
altered from a three bedroom apartment to a two bedroom apartment and
that substantial improvements were made to the subject apartment. In
Order Number 11,139, issued on December 6, 1985, the Administrator
determined that the owner was entitled to a free market rent based on
substantial alteration of the apartment so as to create a new dwelling
unit and determined that the tenant was not overcharged. On March 17,
1988 an Order of Remand was issued by the Commissioner and on February
22, 1991 the Administrator in Order Number CC-410148 RP determined that
the owner was not entitled to a free market rent because the outer
dimensions of the apartment had not been changed. The Administrator
FC 410292 RO
established the lawful stabilized rent as $240.00 per month effective
December 1, 1980, determined that the tenant had been overcharged and
directed a refund to the tenant of $52,763.39 including interest on
overcharges collected on and after April 1, 1984.
In this petition, the owner contends in substance that the first Order
by the Administrator finding a free market rent was correct; that the
Agency had denied it an opportunity to review the file; and that the
Agency should consider new architectural plans submitted with the
petition showing that the exterior walls of the apartment had changed.
In answer to the owner's petition, the tenant states in substance that
the owner should not be able to submit any new bills, cancelled checks
or architectural plans that were not submitted before the Administrator
and just for the first time submitted in this PAR proceeding. In
addition the tenant asserts that the new architectural plan dated
February 14, 1991 differ from the original plans submitted on December
13, 1983 and therefore were fabricated for the purpose of this PAR.
The Commissioner is of the opinion that this petition should be denied.
An examination of the record in this case discloses that the owner has
been afforded an opportunity to review the file and has done so. The
owner requested a 60 day extension to submit an answer but failed to
submit an answer within that time. The owner requested a second 45 day
extension and was denied this request in accordance with Advisory
Opinion 92-1 as the request was not "as of right" and was therefore
discretionary with the Agency. The "new" architectural plans dated
December 13, 1983 cannot be considered for the first time on the PAR
level. However, even if the new plans would be considered, it is noted
that the new plans differ from the ones submitted to the Administrator
and that the plans only show a de minimus change to the dimensions of a
closet that would not qualify the apartment for a free market rent.
It is noted that a submission by fax was received on September 16, 1992
from the owner's attorney. However, said submission was untimely filed
in accordance with Advisory Opinion 92-1.
Accordingly, the Rent Administrator's order was warranted.
Because this determination concerns lawful rents only through August 15,
1988, the owner is cautioned to adjust subsequent rents to an amount no
greater than that determined by the Rent Administrator's order plus any
lawful increases, and to register any adjusted rents with this order and
opinion being given as the explanation for the adjustment. A copy of
this order and opinion is being sent to the current occupant of the
subject apartment.
This order may, upon the expiration of the period in which the owner may
institute a proceeding pursuant to Article 78 of the Civil Practice Law
and Rules, be filed and enforced in the same manner as a judgment.
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, denied, and, that the order of the Rent Administrator be, and
the same hereby is, affirmed.
FC 410292 RO
ISSUED:
JOSEPH A. D'AGOSTA
Acting Deputy Commissioner
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