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. FB410025RO
: DISTRICT RENT OFFICE
Joshua Tauber, DOCKET NO. AA410225R
TENANT: Nancy Larsen
ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
On February 5, 1991, the above-named owner filed a petition for
administrative review of an order issued on January 23, 1991 by a
District Rent Administrator concerning the housing accommodations known
as 44 West 85th Street, New York, New York, Apartment No. 4B, wherein
the Administrator determined that the owner had overcharged the tenant.
The Administrator 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 commenced by the filing of an overcharge complaint.
The tenant stated, among other things, that she was not presented with
a rental history. The tenant also noted that the prior tenant was
overcharged as well.
In his answer the owner alleged, among other things, that no overcharge
occurred. The owner alleged he was entitled to a new first
stabilization rent based on extensive work done in the subject
Subsequently, the Administrator notified the owner that the record
failed to indicate that the subject apartment was properly registered.
The Administrator requested that the owner produce proof of service of
the 1984 registration and a lease history from April 1, 1980.
The owner submitted a Rent Stabilization Association affidavit attesting
to service of the initial registration on the tenant in residence on
April 1, 1984, a copy of the RSA mailing addressee list including the
April 1, 1984 tenant, and an amended 1984 registration form addressed to
a different tenant. The record also contained several leases for the
subject apartment including the lease in effect on April 1, 1980.
In the order here under review, the Administrator found that the owner
had failed to adequately prove service of the Initial Registration Form
on the tenant then in occupancy. The Administrator further found that
the owner had failed to submit the lease in effect on April 1, 1980.
Using the court-approved default method, the Administrator determined
that the complainant-tenant's lawful stabilized rent was $850.00 per
month and that the total overcharges were $10,238.25 including treble
damages and excess security.
In his petition for administrative review, the owner asserts that he
had, in fact, registered this building in 1984, that he had submitted
the initial registration form and proof of service, and that he had
supplied DHCR with all the information the agency requested. Further,
he alleges that in a DHCR case involving the prior tenant of the subject
apartment, the overcharge complaint was found to be "without merit."
In her answer to the petition for administrative review, the tenant
asserts that the overcharges should have been larger based on the same
overcharge case involving the prior tenant.
The Commissioner is of the opinion that this petition for administrative
review should be granted in part.
The owner incorrectly alleges that the overcharge complaint filed by the
prior tenant of the subject apartment under Docket No. 005988 was found
to be "without merit." In fact, that order found a lower lawful
stabilization rent than the Administrator's order under appeal herein
and was in full force and effect at the time the instant case was being
processed. Correct processing of this case based on the earlier
Administrator's order would result in detriment to the owner. As such,
and in the absence of a timely petition for administrative review by the
tenant, the Commissioner finds it appropriate to deny this portion of
the owner's petition for administrative review.
Regarding the owner's allegation that the prior tenant was served with
the initial registration, this allegation is corroborated by DHCR
records. In the prior DHCR case under Docket No. 005988, the prior
tenant acknowledged receipt of the initial registration and submitted a
copy of the initial registration addressed to him which he had received
from the owner. Accordingly, the Administrator's finding that the
initial registration was not served on the prior tenant was incorrect
and must be revoked.
The Commissioner will not grant the tenant's request to increase the
amount of the overcharges. As indicated above, while the tenant's
allegation may be meritorious, her failure to file a timely petition for
administrative review precludes the Commissioner from increasing the
amount of the overcharges.
Because this determination concerns lawful rents only through July 31,
1987, the owner is cautioned to adjust subsequent rents to an amount no
greater than that determined by this order plus any lawful increases.
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.
A copy of this order and opinion is being sent to the current occupant
of the subject apartment.
THEREFORE, in accordance with the provisions of the Rent Stabilization
Law and Code, it is
ORDERED, that this petition be, and the same hereby is, granted in part,
and the District Rent Administrator's order be, and the same hereby is,
modified in accordance with this order and opinion. The amount of the
rent overcharge through July 31, 1987 is $10,238.25.
JOSEPH A. D'AGOSTA