GE210176RO
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.: GE210176RO
DISTRICT RENT ADMINISTRATOR'S
Rose Realty Co., DOCKET NO.: GA210010RK
TENANT: Frances Brisman
PETITIONER
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ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
On May 20, 1992, the above-named owner timely refiled a Petition for
Administrative Review of an Administrator's order concerning the housing
accommodations known as 1150 Brighton Beach Avenue, Brooklyn, New York,
Apartment No. 3O, wherein the Administrator determined that the owner
had overcharged the tenant.
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 commenced by the filing of an overcharge complaint
on February 27, 1984.
In his answer, the owner alleged that the base date was May 1, 1978 and
submitted a complete rent history from that date. The owner alleged
that no overcharge occurred.
In an order dated June 14, 1989, under Docket No. K3101842R the
Administrator determined that the owner had defaulted in his obligation
to provide a complete lease history. The Administrator also found that
the subject apartment was not registered. Using the court approved
default method of calculation, the total overcharges were determined to
be $12,281.36 through April 30, 1986 and the lawful stabilization rent
was frozen at $233.35.
Subsequently, the Administrator reopened this proceeding under Docket
No.GA210010RK because the original order was sent to the owner at an
incorrect address. This new order simply corrected the owner's mailing
address and was mailed to that corrected address. No substantive
changes were made in the body of the order.
In its petition for administrative review, the owner asserts, among
other things, that the Administrator could only begin its inquiry into
overcharges as of April 1, 1980 based on the Appellate Division, Second
Department's ruling in J.R.D. Management Corp. v. Eimicke, 148 A.D.2d
610, 539 N.Y.S. 2d 667 (2d Dep't 1989). In the alternative, it is
alleged that even if JRD did not apply, the owner had supplied a
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complete lease history below. Further, the owner states that the
subject apartment had been duly registered and submits a DHCR certified
copy of agency records showing that the subject apartment was registered
in 1984.
The Commissioner is of the opinion that this petition should be granted.
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).
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
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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. An examination of the rent records
from April 1, 1980 discloses that no rent overcharge occurred.
Therefore, the Rent Administrator's order finding a rent overcharge must
be revoked.
The Commissioner also finds that the subject apartment was duly
registered for all years since 1984. A reexamination of DHCR's records
along with the owner's submission of a certified copy of the DHCR
computer records for 1984 indicate that the Administrator erred in his
conclusion that the subject apartment was not registered.
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 is permitted to pay off the arrears in 24
equal monthly installments. Should the tenant vacate after the issuance
of this order or have already vacated, said arrears shall be payable
immediately.
THEREFORE, in accordance with the Appellate Division ruling in JRD, it
is
ORDERED, that this petition for administrative review be, and the same
hereby is, granted, that the order of the Rent Administrator be, and the
same hereby is, revoked, and it is found that no rent overcharge
occurred.
ISSUED:
JOSEPH A. D'AGOSTA
Deputy Commissioner
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