GE 210208 RO
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. GE 210208 RO
: DISTRICT RENT OFFICE
DOCKET NO. ZED 210227 R
Norman Henry,
TENANT: Nathaniel Lewis
PETITIONER :
------------------------------------X
ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On May 22, 1992, the above-named petitioner-owner filed a Petition for
Administrative Review against an order issued on April 23, 1992, by the
Rent Administrator, 92-31 Union Hall Street, Jamaica, New York,
concerning the housing accommodations known as 469 St. Johns Place,
Brooklyn, 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 and Section 2528.4(b) 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 of a complaint by
the tenant on April 18, 1990 stating that there was an excessive
increase in the prior tenant's rent and that the apartment was not
registered with DHCR for the years 1985, 1986 and 1989.
The owner was served with the tenant's complaint and requested to submit
leases from April 1, 1986 and proof of registration for 1985, 1986, 1990
and 1991.
In response to the Notice of Intent to Impose Treble Damages, the owner
forwarded a submission post marked April 3, 1992, containing the Annual
Registration Summaries for the subject building for 1987, 1988, 1989,
1990 and 1991, along with annual apartment registrations for the subject
apartment for 1987, 1988, 1989, 1990 and 1991. No documentation
substantiating the filing of these documents with DHCR was included.
In Order Number ZED 210227 R, the Rent Administrator established the
lawful stabilized rent as $300.59 effective November 11, 1988; due to
non-registration for the years 1985, 1986 and 1990, the collectible rent
GE 210208 RO
was frozen at the rent in effect on April 1, 1984 which was $250.50 and
a refund of $28,358.00 including treble damages was directed to be
refunded to the tenant. In was also noted in said order that the owner
had failed to submit a complete rental history from April 1, 1986 as
directed so that the lawful stabilization rent was calculated from the
subject tenant's vacancy lease.
In this petition, the owner contends in substance that the "order was
mailed before the documents reached your office April 3, 1992" and that
the prior tenant had a signed lease for $412.50 which was the basis of
the complainant's lease of $450.00 which included $12.75 for new
equipment.
Along with the petition, the owner submitted the following documents
purported to have been submitted to the Rent Administrator on April 3,
1992.
1) leases in effect for the subject apartment from November 1,
1986 through March 31, 1994
2) annual apartment registrations for the subject apartment for
1985 and 1986 plus the initial 1984 apartment registration
3) a bill from "M. Land used refrigerator Corp" dated January
1985 for a new stove and new refrigerator at a cost of
$863.83.
4) a receipt for multiple dwelling registration post-marked
January 24, 1992, from HPD (Dept of Housing Preservation and
Development).
No substantiation was provided that the above documents were submitted
to the Rent Administrator in a separate mailing on April 3, 1992 or that
these documents were included in the April 3, 1992 submission to the
Rent Administrator which is in file.
The Commissioner is of the opinion that this petition should be denied.
Sections 2528.2 and 2528.3 of the Rent Stabilization Code (hereafter
RSC) outline the owner's obligations under the Omnibus Housing Act to
register subject housing accommodations with DHCR.
Section 2528.4(b) of the RSC provides, in pertinent part, that the
penalty for failure to annually register an apartment will be that the
owner will be barred from collecting any rent in excess of the legal
regulated rent in effect on April first of the year for which an annual
registration was required to be filed... and that the late filing of the
registration shall result in the elimination prospectively of such
penalty.
An examination of DHCR records in this case discloses that the subject
building and apartment were not registered for the years 1985, 1986 and
1990. Further, no substantiation that registrations for those years
were filed, was submitted either below or on appeal.
In addition, the owner has failed to substantiate that the leases and
registrations included with the owner's petition were submitted in the
proceeding before the Rent Administrator.
GE 210208 RO
Since this is not a de novo proceeding the owner's contention that it
had submitted leases from April 1, 1986, as directed by the Rent
Administrator cannot be considered for the first time on appeal.
Moreover, even on appeal, the owner has only submitted leases from
November 1, 1986.
The Commissioner notes that although, the owner filed the 1986
registration in August 1992 after the issuance of the Rent
Administrator's order, DHCR records continue to show no 1985
registration on file for the subject apartment and therefore, the
prospective elimination of the penalty and restoration of the legal
regulated rent is stayed, until the owner completes the missing annual
registrations for the subject apartment.
Accordingly, the Rent Administrator's order was warranted.
The owner is directed to reflect the findings and determination made in
this order on all future registration statements, including those for
the current year if not already filed, citing this Order as the basis
for the change. Registration statements already on file, however,
should not be amended to reflect the findings and determination made in
this order. The owner is further directed 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 or not
in excess of twenty percent per month thereof may of offset against any
rent thereafter due the owner.
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, denied and, that the order of the Rent Administrator be, and
the same hereby is, affirmed.
ISSUED:
JOSEPH A. D'AGOSTA
Acting Deputy Commissioner
|
