FE 210457 RO
STATE OF NEW YORK
DIVISION OF HOUSING AND COMMUNITY RENEWAL
OFFICE OF RENT ADMINISTRATION
92-31 UNION HALL STREET
JAMAICA, NEW YORK 11433
IN THE MATTER OF THE ADMINISTRATIVE ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.: FE 210457 RO
VILLE DE PORT INC. ADAR MGMT., DRO DOCKET NO.: CC 210097 RP
TENANT: SUSAN NORDEN
ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
On May 17, 1991, the above-named petitioner-owner filed a Petition
for Administrative Review against an order issued on April 26,
1991, by the Rent Administrator, 92-31 Union Hall Street, Jamaica,
New York, concerning the housing accommodations known as 100 Caton
Avenue Brooklyn, New York, Apartment No. 7N wherein the Rent
Administrator determined that the owner had overcharged the tenant
and affirmed prior order No. CDR 07,890 which was issued September
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
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 in August
1977 of a rent overcharge complaint by the tenant who occupied the
subject apartment from November 1975 through July 30, 1980.
On July 6, 1978 the Conciliation and Appeals Board, (CAB), the
agency formerly charged with enforcing the Rent Stabilization Law
and Code, issued Opinion 8222 which stated that the owner had
failed to submit rental history from May 31, 1968 and advised the
owner to submit such documentation within 30 days in order to
establish the lawful stabilization rent.
The tenant filed a statement of non-compliance on August 5, 1978
and subsequently the tenant submitted cancelled checks covering the
period January 1975 - September 1975 from the prior tenant
(Abrashein) along with a letter from the prior tenants stating that
their original lease commenced in December 1959 and that their last
renewal lease commenced December 1, 1973 and expired November 30,
1975 at a rental of $299.43 plus $28.00 and tax for a garage space
which the prior tenant had discontinued and ceased to pay for in
1974. The cancelled checks submitted show that the monthly rent
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paid was $299.43.
The Rent Administrator issued order CDR 07,890 on September 17,
1985, in which, due to the owner's failure to submit a complete
rental history from May 31, 1968, it was determined that the
tenant had been overcharged and the lawful stabilization rent was
frozen at $299.43 from November 1, 1975 through July 31, 1980 (the
date that the complainants vacated the subject apartment).
The owner filed a petition for Administrative Review under Docket
ARL 05405 K and an order remanding the proceeding to the Rent
Administrator without rendering a decision on the merits was issued
on February 22, 1988.
On March 25, 1991, the Rent Administrator reopened the proceeding
under Docket CC 210097 RP and on April 26, 1991 issued the order
appealed herein affirming its earlier order issued on September 17,
In this petition, the owner contends in substance that it did not
default as it submitted all the rent records it had; that it should
not be required to submit rent records prior to the date it
acquired the building in May 1976; that all subsequent renewal
increases were within Rent Guideline Board Order limits and that
the tenants had vacated over 10 years ago.
In answer to the owner's petition, the tenant stated in substance
that the order was warranted because the owner has continually
failed to submit rental records as required and the previous
petition and order had affirmed the tenant's rights to the
overcharge due to the owner's invalid excuses for failing to submit
the records. The only prior rental records were obtained through
the tenant efforts in contacting the prior tenant.
The Commissioner is of the opinion that this petition should be
Section 42A of the former Rent Stabilization Code requires that an
owner retain complete records for each stabilized apartment in
effect from June 30, 1974 (or the date the apartment became subject
to rent stabilization, if later) to date and to produce such
records to the DHCR upon demand.
Section 26-516 of Rent Stabilization Law, effective April 1, 1984,
limited an owner's obligation to provide rent records by providing
that an owner may not be required to maintain or produce rent
records for more than 4 years prior to the most recent
registration, and concomitantly, established a 4 year limitation on
the calculation of rent overcharges.
It has been the DHCR's policy that overcharge complaints filed
prior to April 1, 1984 are to be processed pursuant to the law or
Code in effect on March 31, 1984. (See Section 2526.1(a)(4) of the
current Rent Stabilization Code.) The DHCR has therefore applied
Section 42A of the former Code to overcharge complaints filed prior
to April 1, 1984, requiring complete rent records in these cases.
In following this policy, the DHCR has sought to be consistent with
the legislative intent of the Omnibus Housing Act (Chapter 403,
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Laws of 1983), as implemented by the New York City Conciliation and
Appeals Board (CAB), the predecessor agency to the DHCR, to
determine rent overcharge complaints filed with the CAB prior to
April 1, 1984 by applying the law in effect at the time such
complaints were filed so as not to deprive such tenants of their
right to have the lawful stabilized rent determined from the June
30, 1974 base date and so as not to deprive tenants whose
overcharge claims accrued more than 4 years prior to April 1, 1984
of their right to recover such overcharges. In such cases, if the
owner failed to produce the required rent records, the lawful
stabilized rent would be determined pursuant to the default
procedure approved by the Court of Appeals in 61 Jane Street
Associates v. CAB, 65 N.Y.2d 898, 493 N.Y.S.2d 455 (1985).
However, it has recently been held in the case of J.R.D. Mgt. v.
Eimicke, 148 A.D.2d 610, 539 N.Y.S.2d 667 (App. Div. 2d Dep't
1989), motion for leave to reargue or for leave to appeal to the
Court of Appeals denied (App. Div. 2d Dep't, N.Y.L.J., June 28,
1989, p.25, col. 1), motion for leave to appeal to the Court of
Appeals denied (Court of Appeals, N.Y.L.J., Nov. 24, 1989, p. 24,
col. 4), motion for leave to reargue denied (Court of Appeals,
N.Y.L.J., Feb 15, 1990, p. 25, col. 1), that the law in effect at
the time of the determination of the administrative complaint
rather than the law in effect at the time of the filing of the
complaint must be applied and that the DHCR could not require an
owner to produce more than 4 years of rent records.
Since the issuance of the decision in JRD, the Appellate Division,
First Department, in the case of Lavanant v. DHCR, 148 A.D. 2d 185,
544 N.Y.S.2d 331 (App. Div. 1st Dep't 1989), has issued a decision
in direct conflict with the holding in JRD. The Lavanant court
expressly rejected the JRD ruling, finding that the DHCR may
properly require an owner to submit complete rent records, rather
than records for just four years, and that such requirement is both
rational and supported by the law and legislative history of the
Omnibus Housing Act.
Since in the instant case the subject dwelling unit is located in
the Second Department, the DHCR is constrained to follow the JRD
decision in determining the tenant's overcharge complaint, limiting
the requirement for rent records to April 1, 1980. An examination
of the rent records from April 1, 1980 discloses that no rent
overcharge occurred. Therefore, the Rent Administrator's orders
finding a rent overcharge must be revoked.
The Commissioner notes for the record that an examination of the
tenant's renewal leases prior to April 1980 discloses that the
rents charged therein did not exceed the Rent Guideline Board
orders in effect at the time the renewal leases were executed.
THEREFORE, in accordance with the Appellate Division ruling in JRD,
ORDERED, that this petition for administrative review be, and the
same hereby is, granted, that the order of the Rent Administrator
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be, and the same hereby is, revoked, and it is found that no rent
JOSEPH A. D'AGOSTA
Acting Deputy Commissioner