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
APPEAL OF ADMINISTRATIVE REVIEW
DOCKET NO. FC910011RO
Karl & Elizabeth Marston DISTRICT RENT
ADMINISTRATOR'S DOCKET
NO. NEI-9-1-0329/R
PETITIONERS
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ORDER AND OPINION REMANDING THE PROCEEDING TO THE RENT
ADMINISTRATOR
On February 26, 1991, the above-named landlords filed a petition
for administrative review of an order issued on January 25, 1991
by a District Rent Administrator concerning the housing
accommodations known as 84 Winthrop Avenue, Apartment 6, New
Rochelle, New York, wherein the Administrator determined that an
overcharge had occurred.
The Commissioner has reviewed all of the evidence in the record
and has carefully examined that portion of the record relevant
to the issues raised in the petition for review.
This proceeding was commenced on September 20, 1990 upon the
filing of a general complaint of rent overcharge by the tenants.
On October 22, 1990, the Division of Housing and Community
Renewal (DHCR) sent a copy of the tenants' complaint to the
landlords with instructions to file an answer within twenty days.
On November 15, 1990, DHCR sent a "final notice" to the landlords
to allow them a further opportunity to answer the complaint and
submit the appropriate documentation.
DHCR received no answer from the landlords.
In the order here under review, the Administrator determined that
the landlords had defaulted. The lawful stabilization rent was
established as $396.48 based on the lowest registered rent of the
only registration on record with the agency (1988). The District
No. FC919911RO - 2 -
Administrator directed the landlords to refund $22,914.00 in
overcharges, which included treble damages for the overcharges
collected for the two years preceding the Administrator's order.
In the petition for administrative review, the landlords request
reversal of the Administrator's order. First, the landlords
allege that an answer was filed in the proceeding below and it
included all the registration statements since 1984. They
allege that, in answering the complaint, they followed oral
instructions from the District Rent Office as a result of a
telephone call. Copies of all the registration statements are
included with the petition for review. Second, the landlords
assert that the subject apartment had previously been rented
under the Section 8 program and that after the previous tenant
vacated, extensive improvements were made and the Section 8
inspector advised the landlords that they could charge $700.00
per month. The landlords further assert that when the current
tenants took occupancy they falsely represented themselves as
eligible for the Section 8 program. The landlords contend that
the overcharge and treble damages constitute an unjust windfall
to the tenants resulting from the tenants' misrepresentation.
After careful consideration, the Commissioner is of the opinion
that this petition should be remanded to the Rent Administrator
for further processing.
The Commissioner finds that answers and copies of registration
forms were filed by the landlords in accordance with oral or
written instruction from the District Rent Office but that they
failed to reach the file in this proceeding. Accordingly, the
Commissioner is of the opinion that the proceeding should be
remanded to the District Rent Administrator for the purpose of
considering the landlords' and the tenants' submissions on their
merits and for the issuance of a new order determining the
complaint.
THEREFORE, in accordance with the Emergency Tenant Protection Act
and the Tenant Protection Regulations, it is
ORDERED, that this proceeding be, and the same hereby is,
remanded to the District Rent Administrator for further
processing in accordance with this order and opinion; and it is
FURTHER ORDERED, that the automatic stay of so much of the
District Rent Administrator's order as directed a refund be, and
the same hereby is, continued until a new order is issued upon
remand.
NOTE: The determination in the District Rent Administrator's
order as to the rent effective February 1, 1991 and thereafter
was not stayed by the filing of the instant petition for
administrative review, and remains in full force and effect until
Docket No. FC910011RO
- 3 -
a new order is issued upon remand.
ISSUED:
ELLIOT SANDER
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