FD 410105-RO; FE 410023-RT
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 NOS.:
FD 410105-RO
BRADFORD SWETT AND ASSOCIATES, FE 410023-RT
and
RANDY D. SPENCE, DISTRICT ADMINISTRATOR'S
DOCKET NO.:
PETITIONERS L 001847-R
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ORDER AND OPINION GRANTING PETITIONS FOR ADMINISTRATIVE REVIEW
IN PART AND REMANDING THE PROCEEDING TO THE RENT ADMINISTRATOR
On April 9, 1991, the above named petitioner-owner filed a
Petition for Administrative Review against an order issued on
March 5, 1991, by a Rent Administrator concerning housing
accommodations known as Apartment 11 at 1873 Second Avenue, New
York, New York, wherein the District Rent Administrator
determined that the tenant had been overcharged in the amount of
$16,649.72, including treble damages and excess security.
On May 3, 1991 the above-named petitioner tenant refiled a Peti-
tion for Administrative Review against the same Administrative
order.
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 on May 5, 1985.
The tenants took occupancy pursuant to a one-year lease
commencing June 1, 1982, and expiring May 31, 1983, at a monthly
rent of $385.00. The complaint also stated that the rent was
higher than other accommodations in the neighborhood and in the
subject-building. There was also a typewritten sheet attached to
the complaint listing numerous reductions in services.
The owner was served with a copy of the complaint and was di-
rected to submit a complete lease history from the base date, to
establish the lawfulness of the rent being charged.
In an answer dated July 8, 1985, the owner states that there were
no other similar apartments rented for $385.00, and that the
tenant had agreed to lease renewals in accordance with the
guidelines. The answer also addressed several of the service
items in the complaint. No lease history was submitted.
The tenant submitted a supplement to the complaint on August 5,
1985, wherein he explained that he had not been served with a
copy of the Registration Form, and that his "overcharge com-
plaint" was delayed because he was only able to find out what
procedures to take "through the grapevine."
The owner was subsequently mailed a request for additional
information and a final notice of pending default. The owner
requested a 30-day extension in which to provide the requested
information on January 30, 1991. In a letter dated February 1,
1991, the Administrator granted an extension until February 22,
1991.
In an order issued on March 5, 1991, the Rent Administrator
determined that the tenant had been overcharged in the amount of
$16,649.72 through May 31, 1987, including treble damages for
overcharges collected since April 1, 1984 and excess security.
The lawful rent upon the complainant's occupancy on June 1, 1982
was determined as $308.00 per month in accordance with procedures
used in the case of the owner's default. It was also determined
that the owner failed to register the apartment as of April 1,
1984. The lawful rent was thus fixed for the duration of the
complainant's tenancy.
In its petition, dated April 9, 1991, the owner contends that the
order is invalid because the tenant was the first rent stabilized
tenant subsequent to the decontrol of the apartment in February,
1982, which information was in the records of the Division. Since
the complainant provided all necessary information as of the date
of his occupancy as the first stabilized tenant, the DHCR already
had a complete lease history, and the application of default
procedures was thus improper.
The tenant's petition stated that the period for computing
overcharges should have been extended until he left the premises
on October 31, 1988.
The Commissioner is of the opinion that the owner's petition
should be granted in part, the tenant's petition should be
granted in part, and that the proceeding should be remanded to
the Administrator for a redetermination.
In reviewing the instant case, the Commissioner finds that the
Administrator erred in defaulting the owner for failing to submit
rental records for the subject apartment since there was no prior
rental history for the subject apartment under stabilization
which could be submitted. The rental documentation submitted by
the owner, as well as Division records, indicate that the base
date for the subject apartment was May 20, 1982 and that the
complaining tenant was the first stabilized tenant to occupy the
subject apartment.
Pursuant to Section YY51-6.0.2 of the Rent Stabilization Law and
Section 25 of the Rent Stabilization Code, a first stabilized
tenant taking occupancy on or after July 1, 1974 has the right to
challenge the initial legal regulated rent by means of a fair
market rent appeal. The proceeding is therefore remanded to the
Rent Administrator for processing as a fair market rent appeal,
which shall include consideration of comparability data submitted
by the owner, if he so elects, in accordance with Section
2522.3(e) of the Rent Stabilization Code.
Finally, the Commissioner grants the tenant's petition to extend
the period of review of the proceeding to the date of the
tenant's verified departure from the subject apartment.
THEREFORE, in accordance with the Rent Stabilization Law and
Code, it is
ORDERED, that the 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:
ELLIOT SANDER
Deputy Commissioner
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