FI 410221 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
IN THE MATTER OF THE ADMINISTRATIVE ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.: FI 410221 RO
GIFFUNI BROTHERS,
DRO DOCKET NO.: ZCI 410202-K
TENANT: NEIL LONDON
PETITIONER
----------------------------------X
ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On September 13, 1991, the above-named petitioner-owner filed a
Petition for Administrative Review against an order issued on
August 9, 1991 by the Rent Administrator, Gertz Plaza, Jamaica New
York, concerning housing accommodations known as 353 East 83rd
Street, New York, New York, Apartment No. 21D wherein the Rent
Administrator determined that the owner had overcharge the tenant.
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
issues raised by the administrative appeal.
This proceeding was originally commenced in September 1988, by the
filing of a rent overcharge complaint by the tenant.
In answer to the complaint the owner submitted a complete rental
history for the subject apartment from September 15, 1982.
An examination of the rental history submitted by the owner
disclosed that the owner had taken a 15% vacancy allowance
effective August 1, 1984 upon the initial occupancy of prior tenant
Manturov. Subsequently the Division of Housing and Community
Renewal (DHCR) sent the owner a notice directing it to submit proof
that the last vacancy allowance collected for the subject apartment
occurred prior to June 30, 1975. In response the owner stated in
substance that pursuant to the Omnibus Housing Act, it was not
FI 410221 RO
required to keep or maintain records for a housing accommodation
more then four years prior to the most recent registration. No
rental history prior to September 15, 1982 was submitted.
In Order Number ZCI 410202 R, the Rent Administrator disallowed the
15% vacancy allowance taken as of August 1, 1984 on the basis that
the owner failed to submit a rental history to substantiate such
allowance and found that primarily due to this factor, a rent
overcharge of $17,839.93 had occurred including treble damages. The
Rent Administrator in his order mistakenly listed the name of the
prior tenant in occupancy from August 1, 1984 to July 31, 1988 as
the current tenant but assigned no overcharge for this period. The
correct name of the prior tenant is Manturov.
In this petition, the owner alleges in substance that it was not
required to submit rent records dating back to June 30, 1975 since
it had duly registered the subject apartment in 1984 and pursuant
to Section 2523.7(c) of the Rent Stabilization Code any owner who
has duly registered a housing accommodation with DHCR shall not be
required to maintain or produce any records relating to the rental
of such accommodation more than four years prior to the initial or
most recent annual registration for such accommodations and that in
any event the imposition of treble damages was not warranted.
The Commissioner is of the opinion that this petition should be
denied.
Pursuant to Guideline 15, in effect when prior tenant Manturov took
occupancy on August 1, 1984, the vacancy allowances are as follows:
1) 0% where vacancy allowances totalling 15% or
more have been charged pursuant to provisions
governing new tenancies commencing on or after
July 1, 1979.
2) 5% where vacancy allowances totalling more
than 0% but less than 15% have been charged
pursuant to provisions governing new tenancies
commencing on or after July 1, 1979.
3) 10% where vacancy allowances were last charged
pursuant to provisions governing new tenancies
commencing July 1, 1975 through June 30, 1979.
4) 15% where no vacancy allowances have been
charged pursuant to provisions governing new
FI 410221 RO
tenancies commencing on or after July 1, 1975.
In the instant case the record establishes that the owner took a
15% vacancy allowance as of August 1, 1984, but when asked to
submit rent records to prove it was entitled to such increase,
failed to do so. Moreover the information submitted by the owner
including a copy of prior tenant Boris Fotin's September 15, 1982
lease and a statement by Mr. Fotin dated September 30,1982 indicate
that the September 15, 1982 Fotin lease was a vacancy lease. The
owner was entitled to a 15% vacancy allowance as of September 15,
1982 pursuant to Guideline 13 then in effect and there is nothing
in the record to show that such allowance was not taken.
Therefore, the owner would not be entitled to take an additional
15% vacancy allowance pursuant to Guideline 15 as outlined above
but in fact would not have been entitled to any vacancy allowance.
Further while the owner is not obligated to maintain or produce
rent records more than four years prior to the initial or most
recent annual registration pursuant to Section 2523.7(c), if the
owner wants to establish a vacancy allowance pursuant to Guideline
15, it must submit the required rental history in order to show
entitlement to any claimed vacancy allowance. If it chooses not to
do so it cannot be credited with said vacancy allowance.
With regard to the owner's contention that the imposition of treble
damages was not warranted, Section 2526.1 of the Rent Stabilization
Code provides in pertinent part that any owner who is found by the
DHCR to have collected a rent or other consideration in excess of
the legal regulated rent on an after April 1, 1984 shall be ordered
to pay to the tenant a penalty equal to three times the amount of
such excess. If the owner establishes by a preponderance of the
evidence that the overcharge was not willful, the DHCR shall
establish the penalty as the amount of the overcharge plus interest
from the date of the first overcharge on or after April 1, 1984.
In the instant case, the owner has not submitted sufficient
evidence to substantiate its claim that the overcharge was not
willful. The owner took credit for a 15% vacancy allowance
claiming in effect that no vacancy allowance had been charged since
July 1, 19785 but refused to produce the required rental history to
show it was entitled to said 15% increase. Rather the partial
rental history submitted by the owner appears to indicate that a
prior vacancy allowance was charged since July 1, 1975.
Accordingly, the imposition of treble damages was warranted.
Because this determination concerns lawful rents only through
August 31, 1991, 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
FI 410221 RO
any adjusted rents with this order and opinion being given as the
explanation for the adjustment.
This order may, upon the expiration of the period in which the
owner may institute a proceeding pursuant to Article Seventy-Eight
of the Civil Practice Law and Rules, be filed and enforced in the
same manner as a judgment or not in excess of twenty percent per
month thereof may be offset against any rent thereafter due the
owner.
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, modified to list Manturov
on the rent calculation chart as the tenant in occupancy from
August 1, 1984 to July 31, 1988. In all other respects the Rent
Administrator's order is affirmed.
ISSUED:
------------------------
JOSEPH A. D'AGOSTA
Acting Deputy Commissioner
|
