DOCKET NO.: FB810120RO
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 : SJR NO. 5774 (Remit)
APPEAL OF ADMINISTRATIVE APPEAL
: DOCKET NO. FB810120RO
JONATHAN WOODNER CO., DRO DOCKET NO. YDG810091R
PETITIONER : TENANTS: MR. & MRS. FRANK INFANTE
ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW IN PART
This Order and Opinion is issued pursuant to an order of the Supreme
Court, County of Westchester, Justice Colabella, Index Number 8785/91,
dated August 15, 1991, which ordered remit of an Article 78 Proceeding,
directing the Division to reconsider its former Order and Opinion issued
on May 1, 1991, upon which the court proceeding had been based.
On February 11, 1991 the above-named petitioner-landlord filed a Petition
for Administrative Review against an order issued on January 7, 1991 by
the District Rent Administrator, 55 Church Street, White Plains, New York
concerning the housing accommodations known as Apartment 4 at 11 Shore
View Drive, Yonkers, New York wherein the District Rent Administrator
determined that the landlord had overcharged the tenants.
The issue in this appeal is whether the District Rent Administrator's
calculation of the overcharge was correct.
The proceeding is governed by Section 2506.1 of the Tenant Protection
The Commissioner has reviewed all of the evidence in the record and has
carefully considered that portion of the record relevant to the issues
raised by the administrative appeal.
This proceeding was originally commenced in July, 1989 by the filing of an
overcharge complaint by the tenants, in which they stated that they had
commenced occupancy on October 1, 1985 at a rent of $709.50 per month.
The landlord was served with a copy of the complaint, and was requested to
submit rent records to prove the lawfulness of the rents being charged.
In answer, the landlord submitted leases from 1983, and invoices and
cancelled checks for certain alleged new equipment and improvements in the
In reply, the tenants alleged that many of the claimed improvements were
not professionally done, were not new, or were not done at all.
In an order issued on January 7, 1991, the Administrator allowed a monthly
rent increase of $44.56 for some of the alleged improvements, while
DOCKET NO.: FB810120RO
disallowing increases for blinds, screens, shower wall tiles, resurfacing
of the bathtub, painting, plastering, floor scraping, and toilet seat as
ordinary maintenance and repairs. The Administrator also disallowed rent
increases for unspecified bathroom and bedroom fixtures as well as
"various bathroom items (i.e. tankball, shower head)" and a dryer wall and
hamper wall receptacles. The Administrator failed to allow any Guidelines
increase in the rent over the prior tenant's expired lease. The order
found an overcharge of $8,999.71 as of December 31, 1990.
In this petition, the landlord contends in substance that the
Administrator's order incorrectly omitted the 10% Guidelines increases for
the complaining tenants' vacancy lease, and that some unstated
improvements which were disallowed by the Administrator have been allowed
in other DHCR orders. With its petition the landlord has enclosed
Administrator's orders for other buildings on Shore View Drive where rent
increases were allowed for showerhead, blinds, toilet tank, toilet bowl,
wall dryer, and wall hamper. The landlord also enclosed an order which
denied without prejudice an increase for screens, due only to the failure
to the date of that order to submit substantiating evidence.
The tenants did not submit an answer to the owner's petition, although
given an opportunity to do so.
The Commissioner is of the opinion that this petition should be granted in
At the outset the Commissioner notes that the landlord is correct that the
Administrator should have allowed a 10% Guidelines increase for the
complaining tenants' vacancy lease. This 10% is computed from the prior
rent ($540.33) exclusive of the value of the rent increases allowed for
various improvements made during the vacancy period prior to the October
1, 1985 commencement date of the tenants' initial lease. Thus, the
Guidelines increase amounts to $54.03 for the 85 - 87 lease.
Secondly, the Administrator was correct in disallowing rent increases for
shower wall tiles, resurfacing the bathtub, painting and plastering, and
floor scraping, all these items, as well as the numerous minor fixtures
alleged by the owner, are considered mere maintenance and repair.
Furthermore, a new toilet independent of a general remodeling and
replumbing is an essential service for which a rent increase is not
warranted. Compare Administrative Review Docket Number EL410145RO/
Moreover, the Commissioner notes that the remaining alleged improvements
raised by the owner on appeal are supported only by checks and bulk
orders/invoices for equipment. There is no proof in these orders/invoices
or checks that any of the items were actually installed in the subject
apartment. The owner has merely added notations to these orders/invoices
stating that certain items were so installed. No internal work orders or
other evidence supports the landlord's allegations that the items were
actually installed in the subject apartment.
Nevertheless, in responding on November 9, 1990 to the landlord's
submission of these orders/invoices to the Administrator, the tenants did
not dispute the installation of venetian blinds and screens or of a dryer
wall and a hamper wall receptacle. Accordingly, the landlord is hereby
granted a 1/40th increase for each of these four items: 1/40 x ($230.41
+ $173.93 + $38.89 +$71.80) = $12.88.
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Thus the tenants' initial rent should have been $540.33 + $54.03 + $12.88
+ $44.56 (for the improvements allowed by the Administrator) or $651.80.
Therefore, the overcharges should have been computed as follows:
Lease term Rent charged Lawful rent Overcharge with interest
10/1/85-9/30/87 $709.50 $651.80 $1,511.07
10/1/87-9/30/89 $744.97 $684.39 $1,586.50
10/1/89-9/30/91 $782.22 $718.61 $1,005.91
(through 12/31/90, the computation date of order)
Excess security $63.61
The landlord is hereby directed to immediately refund the amount $4,167.09
to the tenants. If the landlord fails to do so, the tenants may recover
the penalty found herein by deducting it from the rent payable to the
landlord at a rate not in excess of 20 percent of the amount of the
penalty for any one month's rent. If no such offset has been made, this
order may, upon the expiration of the period in which the landlord may
institute a proceeding pursuant to Article 78 of the Civil Practice Law
and Rules, be filed and enforced by the tenants in the same manner as a
If the owner has already complied with the Administrator's Order and, as
a result of the instant determination, there are arrears due to the owner
from the tenants, the tenants may pay off the arrears in twenty-four equal
monthly installments during the next twenty-four months. Should the
tenants vacate after the issuance of this Order, all arrears are due
THEREFORE, in accordance with the Emergency Tenant Protection Act and
Regulations, it is
ORDERED, that this petition be, and the same hereby is, granted in part
and the Rent Administrator's order be, and the same hereby is, modified in
accordance with this Order and Opinion to show an overcharge, with
interest and excess security, of $4,167.09.
JOSEPH A. D'AGOSTA