STATE OF NEW YORK
DIVISION OF HOUSING AND COMMUNITY RENEWAL
OFFICE OF RENT ADMINISTRATION
92-31 UNION HALL STREET
JAMAICA, NEW YORK 11433
IN THE MATTER OF THE ADMINISTRATIVE : ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO. GF110129RO
: DISTRICT RENT OFFICE
John Monahogios, DOCKET NO. ZAA100944R
TENANT: Gloria Velez
ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
On May 30, 1992, the above-named petitioner-owner filed a Petition for
Administrative Review against an order issued on May 7, 1992, by the
Rent Administrator, 92-31 Union Hall Street, New York, concerning the
housing accommodations known as 42-72 80th Street, Queens, New York
Apartment No. 4K, 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
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 January, 1986
of a rent overcharge complaint by the tenant who stated in substance
that she took occupancy in February 1981; that no copy of the initial
apartment registration (hereafter RR1) was served on her and that her
rent is too high.
In answer to the complaint, the owner stated in substance that the
tenant's rent included electricity and a major capital improvement
increase issued in December 1989 under order ZBG110486OM; that the
tenant vacated the subject apartment in March, 1992 and that her mother
assumed the lease pursuant to a court stipulation. The owner submitted
leases in effect from March 15, 1980.
In Order Number ZAA100944R, the Rent Administrator established the legal
regulated rent as $471.55 effective February 1, 1984, determined that
the tenant had been overcharged and directed a refund to the tenant of
$21,879.68 including treble damages on that portion of the overcharge
collected on and after April 1, 1984.
In addition, the rent was frozen at the rent in effect on April 1, 1984
due to the owner's failure to submit proof that the RR1 was served on
the tenant and because a service reduction order (ZAA100709S) was still
in effect and no order restoring the rent had been issued.
In this petition, the owner alleges in substance that the Rent
Administrator failed to consider that electricity was included in the
rent when applying Rent Guideline Board Order 13 and did not include the
additional 4% increase for electricity in calculating the rent; that the
rent was incorrectly frozen because the RR1 had been given to the tenant
in 1984 in the owner's office and the rent had been restored after the
service reduction order, as shown by a letter dated November 7, 1987
from the DHCR Compliance Bureau indicating that the tenant had withdrawn
her service complaint; that an MCI order (BG110486OM) granting an
increase was not reflected in the calculation of the legal regulated
rent and that an increase for a new sink should be added to the rent in
1989 because the owner had replaced the sink after the tenant had
damaged the old one.
The owner submitted copies of the MCI order; the November 7, 1987 letter
from the Compliance Bureau, the RR1 form for the subject apartment and
a bill dated March 10, 1989 for a new sink.
In answer to the owner's petition, the tenant stated in substance that
the petition should be denied and the Rent Administrator's order
affirmed because the owner had succeeded in evicting both the
complainant and her mother who had taken over the lease in March 1992.
The Commissioner is of the opinion that this petition should be granted
An examination of the record in this case discloses that the Rent
Administrator had incorrectly calculated the rent for the subject
apartment by not applying the increase for electrical inclusion although
electricity was included in the rent; that an order granting an increase
for major capital improvements had been granted under ZBG110486OM but
not included in the Rent Administrator's calculation of the legal
regulated rent; that the owner had been requested below to submit proof
that a copy of the RR1 was served on the tenant, however, no proof of
service was provided either below or on appeal; that the owner had been
advised in both the November 7, 1987 letter from the Compliance Bureau
and the Commissioner's prior order issued August 1, 1988 which denied
the owner's petition (ARL11729Q) against the service reduction order
(ZAA110709S) to file a rent restoration application to have the rent
restored, but that the owner first filed such an application in July
1992 after the issuance of the order appealed herein; that the owner
failed to submit a copy of the tenant's consent for an increase for the
new sink installed in 1989 either below or on appeal and that moreover
such increase was never collected by the owner.
Sections 2528.2 and 2528.3 of the Rent Stabilization Code outline the
owner's obligations under the Omnibus Housing Act to register subject
housing accommodations with DHCR.
Full compliance with these registration requirements involves both the
filing of an initial registration with DHCR and the service of such
initial registration on the tenant in occupancy on April 1, 1984 or on
the date the apartment first becomes subject to the registration
Section 2528.4(a) of the Code provides, in pertinent part, that the
penalty for failure to completely 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 the date the housing accommodation became
subject to the registration requirements and that the late completion of
the registration shall result in the elimination prospectively of such
Section 2523.4 of the Code provides for a reduction in rent to the level
in effect prior to the most recent guideline adjustment where the owner
fails to maintains services; that such a reduction order shall bar the
owner from the collection of further increases in rent until such
services are restored.
In the instant case, the Rent Administrator correctly froze the
collectible rent based on the owner's failure to prove service of the
RR1 on the tenant and to file for an order restoring the rent although
the owner was given an opportunity below to provide substantiation of
its compliance with both the registration and maintenance of service
The Commissioner rejects as without merit the owner's contention that
the rent had been restored pursuant to the letter dated November 7, 1987
from the DHCR Compliance Bureau because the letter in question never
stated that the rent was restored but advised the owner to file enclosed
RTP-19 forms to have the rent restored.
The Commissioner does agree, however, that the owner is correct that the
electrical inclusion allowance and MCI increase were incorrectly omitted
in the calculation of the legal regulated rent and although not
collectible until the owner complies with the registration requirements
and a rent restoration order is issued, should have been considered by
the Rent Administrator in calculating the legal regulated rents.
Taking the above factors into account, the Commissioner has recalculated
the lawful stabilization rents and amount of rent overcharge for the
subject apartment, including treble damages, on the overcharge occurring
on and after April 1, 1984 to include the electrical inclusion of 4%
under RGBO #13, the electrical inclusion of - 1% under RGBO #15 and the
MCI increase to the legal regulated rent granted pursuant to order
ZBG110486OM issued November 3, 1989.
The lawful stabilization rents and amount of rent overcharge are set
forth on the amended rent calculation chart attached hereto and made a
The owner is directed to reflect the findings and determinations 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
the order. The owner is further directed to adjust subsequent rents to
an amount no greater than that determined by this order plus any lawful
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.
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 in part, and, that the order of the Rent
Administrator be, and the same hereby is, modified in accordance with
this order and opinion. The lawful stabilization rents and the amount
of the rent overcharge are established on the attached chart which is
fully made a part of this order. The amount of the rent overcharge
through March 31, 1992 is $19,408.86.
A copy of this order is being served on the current tenant of the
JOSEPH A. D'AGOSTA