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
APPEALS OF DOCKET NO.GH410052RT,
AND DRO DOCKET NO.ZEC410030RP
G.T.S. REALTY CORP. TA11218,
ORDER AND OPINION DENYING PETITIONS FOR ADMINISTRATIVE REVIEW
On August 12, 1992, the above-named petitioner-owner and tenant
filed Petitions for Administrative Review against an order issued on
July 10, 1992, by the Rent Administrator, 92-31 Union Hall Street,
Jamaica, New York, concerning the housing accommodations known as
347 East 61st Street, New York, New York, Apartment No. 4RW
wherein the Rent Administrator determined that the owner had
overcharged the tenant.
The Commissioner notes that this proceeding was filed prior to
April 1, 1984. Sections 2526.1 (a) (4) and 2521.1 (d) of the Rent
Stabilization Code (effective May 1, 1987) governing rent overcharge
and fair market rent proceedings provide that determination of these
matters be based upon the law or code provisions in effect on March
31, 1984. Therefore, unless otherwise indicated, reference to
Sections of the Rent Stabilization Code (Code) contained herein are
to the Code in effect on April 30, 1987.
The Administrative Appeals are being determined pursuant to the
provisions of Section 42A of the former 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 appeals.
This proceeding was originally commenced by the filing in May,
1983 of a fair market rent adjustment application and a rent
overcharge complaint by the tenant. In the overcharge complaint,
the tenant stated that the subject apartment had been decontrolled
in 1975 and submitted rent records to that effect.
Only a copy of the tenant's overcharge complaint and a copy of
the Rent Administrator's order were sent to the owner at its correct
address - 427 East 74th Street. Other mailings sent to the owner
from DHCR during the course of the proceeding including a Final
Notice of Pending Default were sent to the owner at an incorrect
address - 1525 York Avenue - and were returned by the Post Office as
undeliverable. There was no record of any response from the owner
in the proceeding before the Rent Administrator.
In an order issued on November 3, 1986 under Docket TA 11218
and 72401G, CDR 25,932, the Rent Administrator determined that the
fair market rent was $215.45 effective May 1, 1981, the date of
initial occupancy by the tenant herein, found that the tenant had
paid excess rent of $11,724.90 from May 1, 1981 through August 31,
1986 and directed that this amount be refunded to the tenant.
The owner filed an appeal against the November 3, 1986 order
under docket number AL410224RO. On March 1, 1990, the Commissioner
issued and Order and Opinion Remanding Proceeding in order to afford
the owner an opportunity to respond to the tenant's fair market rent
appeal in that there was no evidence to show that the owner had been
given such opportunity in the earlier proceeding.
Upon remand the owner was directed to submit copies of all
leases or rent ledgers from June 30, 1974 or the date on which the
last rent controlled tenant vacated the subject apartment, whichever
occurred later. The owner was also afforded the opportunity to
submit rents of comparable apartments.
In response to the DHCR directive, the owner cited some
apartments it alleged were comparable, but did not submit the
required rental history. DHCR rent records for the subject
apartment disclose that the subject apartment was decontrolled from
Rent Control on February 3, 1975 so that the owner was required to
submit a rental history from that date.
In Order Number ZEC410030R/P, appealed herein, the Rent
Administrator determined that due to the owner's failure to submit
a complete rental history, the owner had collected a rent overcharge
of $16,988.09 from May 1, 1981 through August 31, 1991, including
interest on that portion of the overcharge occurring on and after
April 1, 1984.
In the owner's petition, the owner contends in substance that
the Rent Administrator improperly used the default formula to
establish a rent overcharge but instead should have processed the
complaint as a fair market rent appeal as directed in the
Commissioner's Order Remanding the Proceeding. The owner also
points out that the tenant meets the criteria for filing a fair
market rent appeal.
In the tenant's petition, the tenant contends in substance
that the imposition of treble damages rather than interest was
The Commissioner is of the opinion that these petitions should
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 to date and produce them to the DHCR upon
demand. If the apartment was decontrolled from the Rent Control Law
after June 30, 1974, the owner must provide satisfactory documentary
evidence of the apartment's date of decontrol and submit a rental
history from that date.
In the instant case, the owner has not provided a complete
rental history as mandated by Section 42A. Further since the tenant
herein was clearly not the first rent stabilized tenant as shown by
the 1975 Report of Decontrol, it was proper to treat this proceeding
as a rent overcharge proceeding rather than as a fair market rent
appeal proceeding. The tenant filed both an overcharge complaint
and a fair market rent appeal and the owner was aware of both
actions by the tenant and afforded an opportunity to submit a
complete rental history. The Rent Administrator was not precluded
by the Commissioner's Order Remanding the Proceeding from processing
the complaint as an overcharge complaint and it is noted that it is
the usual procedure where both an pvercharge complaint and a fair
market rent appeal are filed, to process cases as default
overcharges where owners fail to submit a complete rental history
when the complaining tenant is not the first rent stabilized tenant.
With regard to the tenant's petition, the imposition of treble
damages is not warranted since the tenant filed her overcharge
complaint prior to April 1, 1984, and the owner was never served at
its correct address with any notice that treble damages would be
imposed for willful overcharges. Accordingly, the Rent
Administrator's order was warranted.
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 determinations 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
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
be 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 these petitions for administrative review be, and
the same hereby are, denied, and, that the order of the Rent
Administrator be, and the same hereby is, affirmed.
JOSEPH A. D'AGOSTA