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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. FC 210375 RT
: DISTRICT RENT ADMINISTRATOR'S
Hyacinth L. Williamson, DOCKET NO. EK 210129 R
TENANT: Lorraine Moody
PETITIONER :
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ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
IN PART
On March 28, 1991, the above-named owner filed a petition for
administrative review of an order issued on March 5, 1991 by a
District Rent Administrator concerning the housing accommodations
known as 138 East 55th Street, Brooklyn, New York, Apartment No.
2R, wherein the Rent Administrator determined that the owner had
overcharged the tenant.
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 commenced on October 31, 1990 by the filing of
an overcharge complaint. The tenant stated that she was not
presented with any rent history of the subject apartment and that
the owner had not registered the subject premises for the years
1984 through 1989.
In answer to the tenant's complaint, the owner stated, in
substance, that she had purchased the subject building in December
1986 and that she was unable to obtain any lease history from the
prior owner. Further, the owner stated that she was unaware of the
registration requirements.
In the order here under review, the Administrator found that the
owner had defaulted in her obligation to produce rent records from
April 1, 1980 and established the legal regulated rent at $482.46.
The Administrator also determined that the overcharges through
October 23, 1990 totalled $8,374.96 including treble damages and
excess security.
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In her petition for administrative review, the owner asserts that
no overcharges occurred. The owner alleges that the tenant paid no
rent at all for a one year period preceding the tenant's filing of
the complaint, and that this tenant's "self-help" crediting of
rents due the owner resulted in no overcharges. Further, the owner
is its petition asserts, in the alternative, that no treble damages
should have been assessed by the Administrator. Finally, the owner
asserts that the Administrator erred in establishing the lawful
stabilization rent. It is alleged that the Administrator could
examine the rental history of the subject apartment for only the
four years prior to the filing of the complaint.
In a subsequent communication received from the tenant, she alleges
that the Administrator erred in the calculations. She does not
address the owner's allegation that she had paid no rent for the
one year period preceding the filing of the complaint. The
Commissioner afforded the tenant a second opportunity to address
the issue of her withholding of rent and again no response was
received.
After careful consideration, the Commissioner is of the opinion
that this petition should be granted in part.
As noted above, it is uncontested that the tenant paid no rent for
one year prior to the filing of her complaint. It is also clear
that the amounts withheld by the tenant more than negated any
overcharges which had accrued. Since this withholding of rent by
the tenant occurred prior to her filing of the complaint, these
amounts must be considered in this order and opinion.
Accordingly, the Commissioner finds that the owner is not liable to
the tenant for any overcharges. As a result of this finding, the
issue of treble damages need not be addressed.
However, the Administrator correctly determined the lawful
stabilization rent for the subject apartment. The owner alleges
that the Administrator could only examine the rental history for
four years prior to the filing of the complaint in accordance with
Section 2526.1(a)(2) of the Rent Stabilization Code. This
allegation is without merit. The owner had failed to register the
subject apartment unit in 1984, 1985 or 1986 and acknowledged in
her answer to the tenant's complaint that she was unaware of any
registration requirements. In fact, DHCR records disclose that
registrations for all the subsequent years were not filed until
1990. Because the subject apartment was not registrated until 1990,
the Administrator correctly demanded the rental history of the
subject apartment from April 1, 1980.
Further, the Administrator properly determined that a default had
occurred. It is a long-standing DHCR policy that a new owner
"steps into the shoes" of the prior owner. Upon purchasing a rent-
regulated property, the new owner knew or should have known of its
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obligation to acquire a complete set of rental records. Its
failure to do so is insufficient to avoid a finding of default.
Accordingly, the Commissioner finds that the Administrator
correctly determined the lawful stabilization rent at $482.46 as of
October 23, 1990.
THEREFORE, in accordance with 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
Administrator be modified in accordance with this order and
opinion.
ISSUED:
JOSEPH A. D'AGOSTA
Acting Deputy Commissioner
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