FJ 110170 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
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IN THE MATTER OF THE ADMINISTRATIVE : ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO. FJ 110170 RO
: DRO DOCKET NO. ZCK 110012 RP
Jonathan Woodner Co.,
TENANT: Borney Restrepo
PETITIONER :
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On October 1, 1991, the above-named petitioner-owner filed a Petition
for Administrative Review against an order issued on August 28, 1991,
by the Rent Administrator, Gertz Plaza, Jamaica, New York, concerning
the housing accommodations known as 43-23 Colden Street, Queens,
New York, Apartment No. 25-H, wherein the Rent Administrator determined
that the owner had overcharged 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 issue
raised by the administrative appeal.
This proceeding was originally commenced by the filing in March 1984 of
a rent overcharge complaint by the tenant. The tenant stated that he
moved to the subject apartment on September 1, 1981 at a rental of
$546.00 per month.
The owner was served with a copy of the tenant's compliant and directed
to submit a complete rental history from the base date June 30, 1974 or
if the apartment was decontrolled after June 30, 1974, the base date
would be the initial date of occupancy of the first rent stabilized
tenant.
In answer to the tenant's complaint, the owner stated in substance that
the tenant was not being overcharged. The owner submitted copies of
leases for the subject apartment from September 1, 1981 but no leases
prior thereto and copies of bills and cancelled checks for work done in
the subject apartment in 1979.
In Order Number ZCK 11012 RP, the Rent Administrator determined that due
to the owner's failure to submit a complete rental history, the tenant
FJ 110170 RO
had been overcharged in the amount of $25,854.45 including interest, on
the overcharges occurring on and after April 1, 1984 and directed the
owner to refund such overcharge to the tenant as well as to reduce the
rent. Further the Rent Administrator in his order credited the owner
with a rent increase of $39.98 for some of the 1979 improvements when
setting the September 1, 1981 rent of the tenant herein and did not
freeze the tenant's rent for the period of the rent overcharge.
In this petition, the owner alleges in substance that pursuant to the
decision in JRD, since it was not actually asked for rent records in
this proceeding until November 1988 and its most recent registration for
the subject apartment was July 29, 1988, it should not be required to
submit rent records for any period prior to July 29, 1984 and that when
this is done, it is apparent that no rent overcharge occurred; that the
owner should have been credited with a rent increase for all of the
improvements done in 1979 and not just some of them, and that after an
extensive search through its archives, it has now located additional
leases for the subject apartment. In support of this contention the
owner submitted copies of additional leases for the subject apartment
including a two year lease for a prior tenant which commenced on January
1, 1980.
The Commissioner is of the opinion that this petition should be denied.
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) and to produce such records to the DHCR upon
demand.
Section 26-516 of the 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 to produce rent records for
more than four (4) years prior to the most recent registration, and
concomitantly, established a four 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, 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 rights 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 four years prior to April 1, 1984 of
the 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).
FJ 110170 RO
However, it has recently been held in the case of J.R.D. Mgmt. v.
Eimicke, 148 A.D.2d 610. 539 N.Y.S. 2d 667 (App. Div. 2d Dept., 1989).
motion for leave to reargue or for leave to appeal to the Court of
Appeals denied ( App. Div. 2d Dept., 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 four 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 Dept. 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.
In this case, the owner did not provide a complete rental history from
April 1, 1980 in the proceeding before the Rent Administrator and has
not given a reasonable explanation for its failure to do so. Since this
is not a de novo proceeding, the owner's submission of a rental history
from April 1, 1980 cannot be considered for the first time on appeal.
According the Rent Administrator's order establishing the lawful
stabilization rent utilizing the DHCR default procedure was warranted.
The owner's contention that it had to submit a rental history only from
July 29, 1984 pursuant to JRD, is incorrect. Since the tenant herein
filed his overcharge complaint prior to April 1, 1984, the owner was
required to submit a rental history from April 1, 1980. Further the
owner's contention that it was entitled to an additional rent increase
for improvements done in 1979 is without merit. Since the owner did not
submit the required rental history form April 1, 1980, it was not
entitled to any rent increases for improvements done in 1979. However,
in the absence of a timely petition for administrative review by the
tenant, the Rent Administrator's order will not be amended to delete the
rent increase due to the 1979 improvements.
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 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 78 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.
FJ 110170 RO
THEREFORE, in accordance with the provision 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, affirmed.
ISSUED:
JOSEPH A. D'AGOSTA
Acting Deputy Commissioner
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