GC410330RO
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 SJR 6859 (Mandamus)
IN THE MATTER OF THE ADMINISTRATIVE : ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO. GC410330RO
: DISTRICT RENT OFFICE
West 58th Street Realty DOCKET NO. ZCD410230R
(Pan Am Equities, Mgr.),
TENANT: Peter S. Van Bloem, Jr.
PETITIONER :
------------------------------------X
ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
IN PART
On March 28, 1991 the above-named petitioner-owner filed a Petition for
Administrative Review against an order issued on February 28, 1991 by
the Rent Administrator, 92-31 Union Hall Street, Jamaica, New York
concerning the housing accommodations known as 462 West 68th Street,
New York, New York, Apartment No. 4E wherein the Rent Administrator
determined that the owner had overcharged the tenant. The order
incorrectly gave the tenant's last name as "Vanbluem" rather than as
"Van Bloem, Jr.".
Subsequent thereto, the petitioner-owner filed a petition in the Supreme
Court pursuant to Article 78 of the Civil Practice Law and Rules
requesting that the Court mandate an expeditious determination of the
petitioner's administrative appeal.
The Administrative Appeal is being determined pursuant to the provisions
of Sections 2526.1 and 2528.4 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 April, 1988 of
a rent overcharge complaint by the tenant, who stated that he had
commenced occupancy on November 1, 1985 at a rent of $946.80 per month.
In answer to the complaint, the owner stated in substance that there had
been only a de minimus overcharge of $3.84 total in the first three
GC410330RO
years of the complaint's occupancy, that such overcharge had been
refunded to him, and that the subject apartment had been registered for
all years.
In an order issued on February 28, 1991 the Administrator, freezing the
lawful rent at the amended 1984 rent since the owner had not shown that
it had registered the subject apartment for 1985, found an overcharge of
$24,853.29, including treble damages, as of October 31, 1989.
In this petition the owner contends in substance that it previously
submitted a copy of the 1985 registration which had been duly served and
filed, proof of mailing of the 1986 registration to the tenant on June
11, 1986, and proof of receipt by the DHCR on July 18, 1986 of an Annual
Registration Summary which dealt with the 1985 registration done in-
house by the owner; that it would be illogical for there to be two 1986
registrations, so the second one must logically be the 1985
registration; that this clearly establishes proof of service of the 1985
amended registration on the tenant; that the Administrator may not have
considered these materials, submitted on February 15, 1991, in the March
1, 1991 order; and that in any event treble damages would not be
warranted since the owner voluntarily reduced the rent in 1984 and since
it had a good faith belief that the subject apartment was properly
registered each year.
The tennat submitted an answer disputing some of the owner's
contentions. Such contentions by the owner are dealt with in the
decisional portion
of this order.
The Commissioner is of the opinion that this petition should be granted
in part.
The Commissioner finds that the owner should be considered to have filed
a registration for the subject apartment for 1985. The owner submitted
three documents pertaining to registrations. One was an apartment
registration dated May 30, 1985, using the RR-1 form designed for the
initial registration, and stating that the rent had changed to $849.06
effective June 1, 1984 due to a "rent rollback." Other documents
previously submitted by the owner indicate that, while the owner started
charging that rent on June 1, 1984, it also refunded $254.05 (5 months
overcharge of $50.81 [$899.87 - $849.06] per month) to the prior tenant,
which meant that the rent was actually reduced to $849.06 effective
January 1, 1984. In effect that registration, on an initial
registration form and not mentioning the April 1, 1985 rent, was an
amended initial registration and not a 1985 annual registration. The
owner also submitted an affidavit from the Rent Stabilization Assocation
about a mailing to tenants on June 11, 1986. As the mailing was
specifically stated to be of the 1986 registration, it gives no evidence
regarding the 1985 registration.
The third document submitted by the owner was an "Annual Registration
Summary," received by the DHCR on July 18, 1986. This is on a form for
the 1985 registration. In the affirmation portion "1985" was changed to
GC410330RO
read that the affirmation was made on July 8, 1986, but the date was not
changed on the heading of Item 16, which read "Type of Units In Building
on April 1, 1985." Under that category the owner had listed 40 occupied
apartments and one vacant unit. The summary also stated that the rent
of 19 of the 41 units had not changed since the initial registration.
The computerized DHCR registration system shows 41 apartments registered
in 1984, one of them (#1A) with an employee. In 1985 there are only 28
units listed, one of them (#1A) being vacant. Six of the 28 have the
same rents as in 1984. (This means that 13 out of 13 of the missing
apartments would need to have unchanged rents to make 19 out of 41; that
may have some relationship to their not showing up on the DHCR system.)
In 1986 there are 40 listed, with no vacancies. (#1A is absent, and not
registered subsequently except in 1990 and 1992). Only three of the 40
apartments have the same rents as in 1984. It is clear that the Annual
Registration Summary is referring to the 1985, rather than 1986,
registration even though it was submitted in 1986. The DHCR
registration system shows that partial registration information was
received from the owner on September 11, 1985. After further
correspondence, registration information for 28 apartments (not
including the subject apartment) was input into the system on May 19,
1986. The Annual Registration Summary received by the DHCR on July 18,
1986 may therefore have represented an attempt by the owner to finally
register all 41 apartments.
The base date tenant in the subject apartment had a lease expiring
December 31, 1985 at a rent of $899.87 per month. In 1984 the owner
retroactively reduced that rent to $849.06. The 1985 registration would
have shown that rent since the same tenant was in occupancy on April 1,
1985. When the complainant commenced occupancy on November 1, 1985 his
rent was set at the proper increase over $849.06. Policy Statement 92-3
provides that, for years prior to 1988, the filing of an initial or
annual registration may be established by the totality of the evidence,
provided that DHCR records corroborate an owner's substantial compliance
with the registration requirements for a building. The Commissioner
finds, based on the previously mentioned factors, including the fact
that the owner sent the DHCR a notarized Apartment Registration Summary
form transmitting registration forms for all the apartments (two thirds
of which do show up on the DHCR registration system) in a year for which
it would have had no reason not to register the subject apartment for
1985 (since the rent would have been the same as in the amended initial
registration, and would have been consistent with the complainant's rent
listed in the 1986 registration, which had already been filed a month
earlier), that the owner should be considered to have filed the 1985
registration for the subject apartment in July, 1986. Since there is no
evidence that the 1985 registration was served on the DHCR before that
time, the owner is not entitled to increase the rent above $849.06 until
August 1, 1986, the next rent payment date following July 18, 1986.
Based on all the circumstances, the Commissioner does not find that the
overcharge resulting from freezing the rent for nine months should be
considered to be willful, so interest is imposed on the overcharges.
The Commissioner has recalculated the lawful stabilization rents and the
amount of overcharge. They are set forth on an amended rent calculation
GC410330RO
chart attached hereto and made a part hereof.
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 is being sent to the current occupant of the subject
apartment.
THEREFORE, in accordance with the Rent Stabilization Law and Code, it is
ORDERED, that this Petition be, and the same hereby is, granted in part
and that the Rent Administrator's order be, and the same hereby is,
modified in accordance with this Order and Opinion. The lawful
stabilization rents and the amount of overcharge are established on the
attached chart, which is fully made a part of this order. The total
overcharge is $1,274.20 as of October 31, 1989 and the tenant is
designated as Peter S. Van Bloem, Jr. rather than as Peter Vanbluem.
ISSUED:
JOSEPH A. D'AGOSTA
Deputy Commissioner
|
