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
APPEALS OF DOCKET NOS.:
FF 110436-RO
VIG ASSOCIATES FG 110169-RT
AND
ALVARO RODRIGUEZ, RENT ADMINISTRATOR'S
DOCKET NO.:
PETITIONERS DH 110494-R
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ORDER AND OPINION GRANTING IN PART TENANT'S AND OWNER'S PETITIONS
FOR ADMINISTRATIVE REVIEW
On June 10, 1991, the above-named petitioner-owner filed a
Petition for Administrative Review against an order issued on
June 7, 1991 by a Rent Administrator concerning housing
accommodations known as Apartment 102 at 43-31 Ithaca Street,
Queens, New York, wherein the District Rent Administrator
determined that the tenant had been overcharged in the amount of
$64.41, including excess security and interest.
On July 11, 1991, the above-named tenant filed a Petition for
Administrative Review against the same order. Insofar as both
petitions are concerned with identical issues of fact and law,
the Commissioner is consolidating them into this Order and
Opinion.
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 appeals.
This proceeding was commenced by the filing of a rent overcharge
complaint by the tenant on August 14, 1989.
The tenant took occupancy pursuant to a two-year lease commencing
December 1, 1980, and expiring November 30, 1982 at a monthly
rent of $415.00.
The owner was served with a copy of the complaint and was
directed to submit a complete rent history from the base date,
including copies of all leases. The owner complied with this
request. Included with the lease history was Administrative
Order No. BD 220662-OM, issued on November 17, 1988, which
granted a building-wide increase for major capital improvement.
On June 7, 1991, the Rent Administrator issued Order No. DH
110494-R, wherein it was determined that the tenant had been
overcharged in the amount of $46.41, including excess security
and interest.
The Administrator calculated a monthly overcharge of $2.16
effective December 1, 1988, the collection date of the first
permanent increase of the MCI order, and $2.35 in the two-year
renewal lease effective December 1, 1989. The order noted that
the temporary MCI increase was stayed pending the Commissioner's
opinion on the tenants' PAR of the MCI order. However, the
permanent increase remained in effect.
In its petition, the owner contends that the Administrator failed
to calculate the full MCI increase granted in the DHCR order.
The tenant's petition objects to the Administrator's failure to
calculate the additional MCI increase that was collected as of
December 1, 1988, thereby raising his rent to $719.59.
The Commissioner is of the opinion that both the tenant's and the
owner's petitions be granted in part.
The initial overcharge determined in the order is correct.
Section 2522.4(a)(8) of the Rent Stabilization Code provides that
the collection of any MCI increase not exceed 6% of the "schedule
of gross rents" submitted with the owner's application. The
tenant's rent on that schedule was $555.93, for which the maximum
collectible amount (6%) is $33.36 per month. Instead, the owner
mistakenly calculated the 6% on the lease rent effective December
1, 1987 ($592.07), which resulted in the $2.16 per month
overcharge.
Although the tenant correctly points out that the Administrator
failed to record the payment of the next 6% portion of the
permanent increase in the December 1, 1989 lease, the owner is
also correct that the calculation of the legal rent was
undervalued. In accordance with DHCR policy, the rent is
increased by the guidelines adjustment for the second 6% portion
of the permanent MCI increase, which became effective as of the
commencement of the lease on December 1, 1989, although it was
not yet collectible on the base date for calculating the
guidelines increase, which was September 30, 1989. As a result,
overcharges are reduced to $39.56 from $64.41, as is documented
in the calculations chart affixed hereto and made a part hereof.
THEREFORE, in accordance with the Rent Stabilization Law and
Code, it is
ORDERED, that the tenant's and owner's petitions be, and the same
hereby are granted in part and that the Administrator's order be,
and the same hereby is modified in accordance with this Order and
Opinion.
ISSUED:
ELLIOT SANDER
Deputy Commissioner
RENT CALCULATION CHART
TENANT : Alvaro Rodriguez Rent Overcharge (through 06/30/91) = $ 36.49
Interest after 04/01/84 = $ 1.56
PREMISES : 43-31 Ithaca Street, Elmhurst, NY Excess Security = $ 1.51
APT. # : 102
TOTAL OVERCHARGE = $ 39.56
DOCKET # : FF 110436-RO; FG 110169-RT ============
Pg. 1 of 2
================+======================+==============+=============+=====================================+=================
(1) | (2) | (3) | (4) | (5) | (6) | (7)
| LEASE TERM | ACTUAL RENT | EFFECTIVE | | LAWFUL | OVERCHARGE
TENANT'S NAME | FROM TO | CHARGED | DATE OF | EXPLANATION | STABIL. | CALCULATION
| | | INCREASE(S) | | RENT /1 |
================+===========+==========+==============+=============+==========================+==========+=================
| | | | | Guideline 17: 09/30/84 | |
Alvaro Rodriguez| 12/01/85 | 11/30/87 | $ 555.93 | 12/01/85 | rent of $522.00 + 6.5% | $ 555.93 | - 0 -
| | | | | guideline increase for | |
| | | | | a 2 year renewal lease | |
| | | | | = $555.53 | |
----------------+-----------+----------+--------------+-------------+--------------------------+----------+-----------------
| | | | | | |
| | | | | Guideline 19: 09/30/86 | |
" " | 12/01/87 | 11/30/89 | $ 592.07 | 12/01/87 | rent of $555.93 + 6.5% | $ 592.07 | - 0 -
| | | | | guideline increase for | |
| | | | | a 2 year renewal lease | |
| | | | | = $592.07 | |
| | |------------------------------------------------------------------------------------
| | | | | M.C.I. Doc. # BD-220662-| |
| | | | | OM allowed a permanent | |
" " | | | $ 627.59 | 12/01/88 | increase of $70.26 | $ 625.43 | $ 2.16
| | | | | ($11.71 x 6 rooms) | | x 12 mos.
| | | | | (collectibility limited | | 25.92
| | | | | to 6% of 02/01/87 rent | | +1.32 *
| | | | | of $555.93 = 33.36). | | $ 27.24
| | | | | | |
| | | | | | | * accrued
| | | | | | | interest
----------------+-----------+----------+--------------+-------------+--------------------------+----------+-----------------
SEE PAGE 2 FOR FOOTNOTE EXPLANATIONS
RENT CALCULATION CHART
TENANT : Alvaro Rodriguez Rent Overcharge (through 06/30/91) = $ 36.49
Interest after 04/01/84 = $ 1.56
PREMISES : 43-31 Ithaca Street, Elmhurst, NY Excess Security = $ 1.51
APT. # : 102
TOTAL OVERCHARGE = $ 39.56
DOCKET # : FF 110436-RO; FG 110169-RT ============
Pg. 2 of 2
================+======================+==============+=============+=====================================+=================
(1) | (2) | (3) | (4) | (5) | (6) | (7)
| LEASE TERM | ACTUAL RENT | EFFECTIVE | | LAWFUL | OVERCHARGE
TENANT'S NAME | FROM TO | CHARGED | DATE OF | EXPLANATION | STABIL. | CALCULATION
| | | INCREASE(S) | | RENT /1 |
================+===========+==========+==============+=============+==========================+==========+=================
| | | | | Guideline 21: 9% guide-| |
| | | | | line increase of | |
" " | 12/01/89 | 11/30/91 | $ 719.59 | 12/01/89 | 09/30/89 rent of $625.43| $ 718.08 | $ 1.51
| | | | | + 2nd permanent M.C.I. | | x 7 mos.
| | | | | increase of $ 33.36, | | 10.57
| | | | | with 9% guideline | | + .24 *
| | | | | increase. | | $ 10.81
| | | | | | |
| | | | | | | * accrued
| | | | | /2, /3, /4 | | interest
----------------+-----------+----------+--------------+-------------+--------------------------+----------+-----------------
RENT CALCULATION CHART NOTES
/1 Where the actual rent charged is less than the rent with maximum permitted increases, the lawful stabilization rent is
limited to the rent charged.
/2 The temporary increase is a separate charge and does not become part of the base rent when computing subsequent in-
creases nor is it to be compounded with any other increase. The total temporary increase to be paid of $983.64 is to
be spread forward over 29 months ($33.36 x 29 months) and the remaining portion ($16.20) is to be paid in full in
the 30th month.
/3 A Petition for Administrative Review ("PAR") has been filed against Docket No. BD-220662-OM under Docket No. CL-130121-RT. As such, the collectibility of the retroactive increase is stayed until the PAR is resolved. At that time the owner may collect the temporary rent increase as per the PAR order, if the Commissioner should deny that PAR.
/4 New lease includes guidelines increase for portion of permanent M.C.I. increase that is collectible on effective
date of the lease. Collection of permanent increase is still limited to 6% per twelve month period.
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