Adm. Rev. Docket No. FB710260RO
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.: FB710260RO
THE BECHTOLDT CORPORATION,
DRO DOCKET NO.:
EA-7-1-0007-R
TENANT:
PETITIONER RONALD B. STEPHENSON
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
The above-named petitioner-owner timely filed a Petition for
Administrative Review (PAR) against an order issued on January 17,
1991, by the Rent Administrator at 50 Clinton Street, Hempstead,
New York, concerning housing accommodations known as apartment
number B6 at 100 Jerusalem Avenue, Hempstead, New York, wherein the
Administrator established the stabilized rent and directed the
owner to refund $3,342.26, including interest from April 1, 1984.
The Commissioner has reviewed all of the evidence in the record and
has carefully considered that portion of the evidence relevant to
the issues raised in the administrative appeal.
There are various issues raised in the PAR. In substance, the
petitioner questions the Administrator's methodology in calculating
the overcharge the landlord has been directed to refund.
This proceeding was originally commenced by the filing of the
tenant's rent overcharge complaint on January 4, 1990. Among the
issues raised therein was the tenant's assertion that there was a
connection between the landlord and the real estate broker to whom
the tenant had paid a fee upon securing the apartment. The matter
was therefore referred to an Administrative Law Judge (ALJ) for a
hearing. The ALJ made various findings; among them, he determined
that there had been no connection between the landlord and the said
broker such as to warrant a conclusion that the fee paid to the
broker actually was a payment to the landlord and should be
refunded as a rent overcharge. Based on all of the ALJ's findings
and recommendations, the Administrator issued the appealed order.
In the Petition, the owner challenges the Administrator's
calculations, in substance, as follows. The petitioner asserts that
Adm. Rev. Docket No. FB710260RO
the Administrator should not have imposed interest on the
overcharge for four years; only two. The petitioner also claims
that the legal regulated rent for purposes of determining this
overcharge should have been the rent registered on April 1, 1986
and not the rent registered on April 1, 1985; and that the
Administrator should not have ordered a full month's overcharge to
be refunded for February, 1987 as the tenant had only paid a half
of a month's rent for that month. The petitioner further states
that "Petitioner also questions whether the DRA is correct in not
granting a guideline increase effective 4-1-87 since the rent is
being calculated retroactively. The tenant was provided with a rent
guideline pricing sheet which he signed. If the calculations were
not correct then the rent should be redetermined from the inception
of the lease based on the allowable increases which would be
granted year by year." Lastly, the petitioner states "Petitioner
believes that the one year rate in effect in 1986 was 4.5% not 4.0%
in April of that year."
In his answer to the PAR, the tenant asks, in substance , that the
appealed order be affirmed.
The Commissioner is of the opinion that this Petition should be
denied.
The Commissioner notes that 9NYCRR2506.1(a)(i) limits the treble
damage penalty to the last two years of overcharges collected, but
there is no such limitation as to the imposition of interest. The
Commissioner also notes that the registration statement filed four
years prior to the registration statement for April 1, 1989 is the
registration statement for April 1, 1985. The Commissioner notes
that the Administrator inadvertently failed to add any portion of
the overcharge collected for February, 1987 to the total overcharge
found. Therefore, the landlord's contention that the overcharge is
excessive by a half a month's overcharge is erroneous. In the
absence of a PAR filed by the tenant, the Commissioner will not
modify the appealed order to correct this error as the petitioner-
owner has raised no question of the overcharge award being
deficient by a half month's overcharge ($32.40) and, therefore, no
such issue is before the Commissioner on this appeal.
As to the petitioner's statement that "Petitioner also questions
whether the DRA is correct in not granting a guideline increase
effective 4-1-87 since the rent is being calculated retroactively.
The tenant was provided with a rent guideline pricing sheet....If
the calculations were not correct then the rent should be
redetermined from the inception of the lease based on the allowable
increases which would be granted year by year." the Commissioner
notes that the tenant's vacancy lease was for a term which
commenced on February 15, 1987 and terminated on February 28, 1988.
Therefore, there could not have been a guideline increase due under
such a lease on April 1, 1987. As to the balance of this statement,
Adm. Rev. Docket No. FB710260RO
the Commissioner finds that what the petitioner appears to be
asking for is what the Administrator did in calculating the
tenant's legal regulated rent and the overcharge to be refunded. As
to the last issue raised in the PAR, the Commissioner finds that
the guideline increase for a one year lease commencing between
October 1, 1986 and September 30, 1987, was 4.0% and that April 1,
1987 was not a significant date in the calculation of the rent
herein. The Commissioner points out that the legal regulated rent
on each April 1st is what a landlord of an apartment subject to the
Emergency Tenant Protection Act is required to report on the annual
registration statement that must be filed with the DHCR for each
such apartment; but the guideline increase applicable to any given
lease is determined by the date that that lease's term commences
on.
This Order may, upon the expiration of the period for seeking
review of this Order and Opinion pursuant to Article Seventy-eight
of the Civil Practice Law and Rules, be filed and enforced as a
judgment and that the County Clerk may add to the overcharge,
interest at the rate payable on a judgment pursuant to section 5004
of the Civil Practice Law and Rules from the issuance date of the
Rent Administrator's Order to the issuance date of the
Commissioner's Order.
The Commissoner notes that the Division's records indicate that the
complaining tenant has vacated the subject apartment. Therefore,
the Commissioner is mailing a copy of this Order and Opinion and a
copy of the appealed order to the current occupant of the subject
apartment.
THEREFORE, pursuant to all of the applicable statutes and
regulations, it is
ORDERED, that this Petition be, and the same hereby is denied; and
that the Administrator's order be and the same hereby is affirmed.
ISSUED:
JOSEPH A. D'AGOSTA
Deputy Commissioner
1A2D3D4FB710260.RO
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