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

          ------------------------------------X
          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      
          ------------------------------------X                            


            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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