GE110020RO
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. GE110020RO
: DRO DOCKET NO.ZEE110023R
SEMEN DEMKIW TENANT: G. ORDONEZ
PETITIONER :
------------------------------------X
ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
On May 7, 1992, the above-named petitioner-owner filed a
Petition for Administrative Review against an order issued on April
9, 1992, by the Rent Administrator, 92-31 Union Hall Street,
Jamaica, New York, concerning the housing accommodations known as
32-86 34th Street, Queens, New York, Apartment No. 4A,
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 on May
1, 1990 of a specific rent overcharge complaint by the tenant who
stated in substance that he moved to the subject apartment in April
1978 at a rental of $212.00 per month and that his specific
complaint was that upon his second lease commencing February 28,
1981, he was unfairly charged a 5% increase for adding an additional
person to the renewal lease and that his rent commencing February
28, 1981 of $263.32 was an overcharge.
In response to the tenant's complaint, the owner stated in
substance that he had properly registered the subject apartment 's
April 1, 1984 rent and served the tenant with a copy of the 1984
registration in July 1984; that the tenant did not challenge the
initial registration within 90 days as required so that the tenant
cannot now challenge any rent increases occurring prior to April 1,
1984. The owner submitted proof that he had served the tenant with
the 1984 registration along with his answer. Subsequently, the
owner submitted a complete rental history as directed by the DHCR
during the course of the proceeding before the Rent Administrator.
GE110020RO
In Order Number ZEE110023R, the Rent Administrator determined
on the basis of the rental history from March 1, 1985 onwards that
the tenant had been overcharged and directed a refund to the tenant
of $4,101.53.
In this petition, the owner contends in substance that the
tenant's overcharge complaint should have been dismissed because it
was based on the lease period commencing in February 1981 and the
tenant had not filed a timely objection to the April 1, 1984
registered rent so that any complaint regarding a rent overcharge
prior to April 1, 1984 cannot be considered and that in any event
the owner was not credited with two major capital improvement rent
increases to which he was entitled.
The Commissioner is of the opinion that this petition should be
granted.
Section 2526.1(a)(3) of the Rent Stabilization Code provides in
pertinent part that except as to complaints filed within ninety days
of the initial registration of a housing accommodation, the legal
regulated rent for purposes of determining an overcharge shall be
deemed to be the rent shown in the annual registration statement
filed four years prior to the most recent registration statement,
(or if more recently filed, the initial registration statement) plus
in each case any subsequent lawful increases and adjustments.
In the instant case, an examination of the record discloses
that the owner initially registered the April 1, 1984 rent of the
subject apartment as required in July, 1984, and that the tenant did
not file his overcharge complaint objecting to the rent charged in
1981 until 1990 - long after the 90 day period for filing an
objection had expired. Accordingly, the Rent Administrator should
have dismissed the tenant's overcharge complaint as an untimely
complaint to the initial registration. Further the record reveals
that the owner was correct in his contention that he was not
credited with two major capital improvement rent increases to which
he was entitled. Therefore the Rent Administrator's order is hereby
revoked.
If the owner has already complied with the Rent Administrator's
order and there are arrears due to the owner as a result of the
instant determination, the tenant shall be permitted to pay off the
arrears in twelve equal monthly installments. Should the tenant
vacate after the issuance of this order or have already vacated,
said arrears shall be payable immediately.
GE110020RO
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, granted, and, that the order of the Rent
Administrator be, and the same hereby is, revoked.
ISSUED
JOSEPH A. D'AGOSTA
Deputy Commissioner
|
