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
APPEALS OF DOCKET NO.FE410028RO
: HI410145RT
Rahda Thomas and DRO DOCKET NO.
Donald S. Rogosin ZAL410529R
SUBTENANT: Donald J.
PETITIONER : Rogosin
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ORDER AND OPINION DENYING PRIME TENANT'S PETITION FOR
ADMINISTRATIVE REVIEW AND DISMISSING SUB-TENANT'S
PETITION FOR ADMINISTRATIVE REVIEW
On May 7, 1991, the above-named petitioner-prime tenant filed a
Petition for Administrative Review against (hereafter PAR) an order
issued on April 17, 1991 by the Rent Administrator, 92-31 Union
Hall Street, Jamaica, New York, concerning the housing
accommodations known as 445 East 78th Street, Apartment 1C, New
York, New York, wherein the prime tenant had overcharged the
subtenant.
On December 8, 1993 the subtenant submitted a copy of his PAR
allegedly filed on September 28, 1993.
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 in the administrative appeals.
This proceeding was commenced on February 19, 1987 when the
subtenant filed a complaint of rent overcharge in which he stated
that he believed that the subject apartment had been sublet for the
purpose of circumventing the rent stabilization laws.
In response to the complaint, the prime tenant submitted copies of
the prime lease and the subleases. The owner of the building
stated that the apartment was vacant when it purchased the building
in June 1984 and alleged that the large increase over the rent of
the prior tenant is justified by the extensive renovations made
while the apartment was vacant.
In the order here under review, the Administrator determined that
an overcharge had occurred and directed the prime tenant to refund
an overcharge of $3,373.36 including treble damages and excess
security.
FE410028RO, HI410145RT
In the appeal, the prime tenant's request that the order be revoked
is based upon two contentions: 1) the Administrator erred in
stating that the prime tenant had failed to submit all required
documentation and 2) the subtenant was in fact charged a lawful
sublet allowance.
The subtenant contends in response that because the subject
apartment was sublet unfurnished, the prime tenant was not entitled
to the 10% allowance permissible for fully furnished sublets. The
subtenant contends also that the rent established as the prime rent
is questionable as it far exceeds the prior tenant's rent and
further contends that the prime tenancy may be an illusory tenancy.
In a letter dated September 28, 1993, the subtenant urges that his
appeal be accepted despite its having been untimely filed because
he did not receive a copy of the Administrator's order when it was
issued. The subtenant contends that he was unaware that the
Administrator's order had been issued until he received on May 14,
1991 notice of the prime tenant's PAR with opportunity to respond
and that his response on June 14, 1991 in which he objected to the
calculation of the legal rent was evidence that he had acted timely
and properly to the order.
The Commissioner is of the opinion that the prime tenant's petition
should be denied and the subtenant's petition should be dismissed
as untimely.
It is noted that the prime tenant did not submit the requested
material (proof of initial registration or a rental history from
April 1, 1984), however the non-submission played no part in the
Administrator's finding that an overcharge was collected and thus
the contention is not relevant to the prime tenant's appeal.
Pursuant to Section 2525.6 of the Code, the rental charged to the
subtenant shall not exceed the legal regulated rent plus no more
than a ten percent surcharge payable to the tenant if the housing
accommodation is sublet fully furnished. There is no evidence that
the apartment was fully furnished when it was sublet. Accordingly,
the Administrator correctly denied the surcharge in determining
that an overcharge had been collected.
The time for filing a PAR is governed by Section 2529.2 of the Rent
Stabilization Code which provides inter alia that a PAR must be
filed with the DHCR in person or by mail within thirty-five days
after the date such order is issued. Pursuant to Code Section
2529.3, a PAR may be filed only on a form prescribed by the DHCR.
FE410028RO, HI410125RT
The Rent Stabilization Code contains no provision for filing a PAR
beyond the thirty-five days referenced above. The Commissioner
notes that the subtenant did not seek to file a PAR until more
than two years after the order's issuance and after he received a
copy of the order. Further contrary to the subtenant's contention
DHCR records disclose that a copy of the Rent Administrator's order
was mailed to the subtenant at his correct address by DHCR on April
17, 1991. Attached to such order was a copy of "Notice of Right to
Administrative Review" informing the subtenant of his right to file
a PAR. Although the subtenant voiced his objection to the order in
response to the prime tenant's PAR, the response cannot be
considered a duly filed PAR. Accordingly, the Commissioner
dismisses the subtenant's PAR as untimely.
The subtenant's allegations with respect to a possible illusory
tenancy and the prime rent cannot be considered herein because the
subtenant did not properly file his own appeal.
Evidence in the record indicates that the subtenant is no longer in
occupancy of the subject apartment and that the prime tenant has
purchased the apartment.
The Commissioner has determined in this Order and Opinion that the
prime tenant collected overcharges of $3373.36. This Order may,
upon 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. Where the
subtenant files this Order as a judgment, 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.
THEREFORE, in accordance with the provisions of the Rent
Stabilization Law and Code, it is
ORDERED that the prime tenant's petition be, and the same hereby
is, denied, that the subtenant's petition be, and the same hereby
is, dismissed and the Rent Administrator's order be, and the same
hereby is, affirmed.
ISSUED:
JOSEPH A. D'AGOSTA
Deputy Commissioner
Deputy Commissioner
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