Docket No. FF 610569-RT
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. FF 610569-RT
DISTRICT RENT
ADMINISTRATOR'S DOCKET
Lynn Friedman and Dennis P. Friedman NO. DH 610244-R
PETITIONER
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ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW IN
PART
On June 19, 1991, the above-named tenants timely filed a
petition for administrative review of an order issued on April 16,
1991 by a Rent Administrator concerning the housing accommodations
known as the Basement Apartment, 3253 Cambridge Avenue, Bronx, New
York.
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 petition for review.
This proceeding was commenced by the subject tenants filing a
rent overcharge complaint, dated August 17, 1989.
The complainants first took occupancy on August 17, 1966, at a
monthly rent of $76.62.
The Administrator's order under review herein stated that:
A review of records of file in this office revealed that
there is currently a proceeding pending under Docket No.
BC-000163-AD to establish the correct Maximum Collectible
rents for all housing accomodations in the subject
building. Accordingly these proceedings have been
consolidated, and a decision will be rendered under
docket No. BC-000163-AD. Both owner and tenant will be
further advised.
The subject tenants' petition asserts, among other things, that
in the proceeding pending under Docket No. BC-000163-AD the
Administrator is to establish the maximum rents for the subject
Docket No. FF 610569-RT
building's rent-stabilized apartments as the landlord's membership
in the Rent Stabilization Association was terminated; that the
subject tenants assert that as they have been rent-controlled
tenants in the subject building since 1966 their proceeding should
not be consolidated with the above-mentioned proceeding pending
under Docket No. BC-000163-AD; that consolidating the subject
tenants' proceeding with Docket No. BC-000163-AD may prejudice the
tenants' "rights to treble damages for the wilful and knowing
overcharges collected in excess of the legal registered rent," and
that there are still existing orders issued by the Courts and the
rent agency finding that there were a diminution of services in the
subject premises.
The tenants' petition also asserts that any excess rent paid by
them should be fully credited "against rent accruing after the date
of the order."
After careful consideration, the Commissioner is of the opinion
that the tenants' petition should be granted in part.
The record reflects that on November 16, 1978 the New York City
Conciliation and Appeals Board (C.A.B.), the agency formerly
charged with enforcement of the Rent Stabilization Law, issued an
order under Docket No. 25602, terminating the landlord's membership
in the Rent Stabilization Association (a quasi-governmental agency
which participated in regulating stabilized apartments, pursuant to
the Rent Stabilization Law, prior to April 1, 1984), as to the 1st
floor apartment of the subject building, for failing to comply with
the directives of two prior C.A.B. orders, and referred that
proceeding to the Department of Housing Preservation and
Development (the govermental agency which regulated rent control
apartments prior to April 1, 1984) "to subject the apartment to
control under the provisions of the City Rent Control Law."
The Commissioner notes that the proceeding to establish the
maximum rent of the 1st floor apartment, based on the above-
mentioned C.A.B. order, was assigned Docket No. 2AD20536.
The Commissioner further notes that the aforementioned Docket
No. BC-000163-AD was terminated by an Administrator's order, issued
on August 26, 1985, in which it was noted that the rent agency's
records reflected that on December 3, 1982, in the proceeding under
Docket No. 2AD20536, the 1st floor apartment was recontrolled
effective December 1, 1978.
As the Administrator's order under review herein determined
that the tenants' overcharge complaint should be consolidated with
Docket No. BC 000163-AD, and that the record reflects that Docket
No. BC 000163-AD has been terminated, the Commissioner finds that
the Administrator's order should be revoked.
The record reflects that the rent agency has already
Docket No. FF 610569-RT
established the subject tenants' maximum rent, and has determined
the issue of rent overcharge in the proceeding under Docket No.
BC 000005-AD issued on November 26, 1984. The Administrator in the
above-mentioned order determined that the subject apartment's
maximum collectible rent (MCR) effective July 1, 1976 was $105.66
per month; that the MCR effective January 1, 1978 was $113.58 per
month; that the MCR effective January 1, 1979 was $115.15 per
month; that the MCR effective June 22, 1984 was $159.16 per month,
and that the MCR effective July 6, 1984 was $210.55. The
Administrator in the above-mentioned order also directed, "that all
rent collected in excess of the maximum rent fixed or established
by this order during the period beginning no earlier than two years
prior to October 10, 1984 shall be refunded to the tenant within 30
days after this order shall become final together with 6% interest
from the date of each successive payment of rent."
The record further reflects that the above-mentioned order
(Docket No. BC 000005-AD) was modified by an Administrator's order
issued on March 9, 1988, under Docket No. BG 620044-RP, which
determined that the landlord may collect an additional $15.00 per
month for garage space, and the Administrator reiterated that the
MCR effective as of July 6, 1984 was $210.55 per month.
The Commissioner notes that the subject landlord filed a
petition for administrative review of the Administrator's order
(Docket No. BG 620044-RT), and that on August 30, 1988 the
Commissioner issued an order dismissing the above-mentioned
petition, under Docket No. CF 620077-RO.
Accordingly, the Commissioner finds that the Administrator's
orders under Docket Nos. BC 000005-AD and BG 620044-RP are final
determinations of the rent agency. Pursuant to these above-
mentioned orders, the Commissioner finds that the tenants' maximum
rent effective as of July 6, 1984 is $210.55 per month and that the
landlord is eligible to collect $15.00 per month for garage space.
The record further reflects that the rent agency on August 26,
1985 issued an order, under Docket No. 6M R5, which determined that
the subject landlord was eligible for a 1984-1985 Maximum Base Rent
increase, effective on October 1, 1984. The Commissioner notes
that the above-mentioned order increased the tenants' maximum rent
to $226.34 per month, effective October 1, 1984.
The record further reflects that the rent agency did not grant
the subject landlord increases for the building's maximum base rent
for the 1986-1987 period and for the 1988-1989 period.
The Commissioner notes that on July 17, 1989 the Administrator
issued an order, under Docket No. CD 610409-S, reducing the subject
tenants' maximum rent by $5.00 per month, effective on the first
rent payment day following the issue date of this order, due to the
Administrator's finding that there were a diminution of services in
the subject building.
Docket No. FF 610569-RT
The Commissioner notes that the subject landlord filed a
petition for administrative review of the above-mentioned order
(Docket No. CD 610409-S), and that on October 4, 1989 the
Commissioner issued an order dismissing the above-mentioned
petition, under Docket No. DH 610361-RO.
Accordingly, the Commissioner finds that the subject tenants'
maximum rent, effective on August 1, 1989, is $221.34 per month
($226.34-$5.00).
The Commissioner notes that the Administrator's order, under
Docket No. CD 610409-S, did not determine whether the diminution of
services in the subject building was an essential or a non-
essential service. The Commissioner further notes that the rent
agency's Policy Statement (90-1) states that when there is a rent
reduction order for failure to maintain services for rent
controlled apartments that is still in effect, which does not
distinguish between a failure to provide an essential or a non-
essential service, the landlord is barred from collecting any
subsequent MCR increases, until an order has been issued restoring
the rent.
The record reflects that the rent agency has not restored the
subject tenants' rent, and that the order issued under Docket No.
CD 610409-S is still in effect.
Accordingly, the Commissioner finds that the subject landlord,
as of August 1, 1989, may not collect rent in excess of $221.34 per
month from the subject tenants until the rent agency issues an
order restoring the rent. The Commissioner is of the opinion that
the subject landlord may continue to collect $15.00 per month from
the subject tenants for garage space.
As to the tenants' claim of being entitled to treble damages
for the amount of excess rent that was collected by the landlord,
or the tenants' assertion that they should receive credit toward
future rents equal to the amount of excess rent that was collected
by the landlord, the Commissioner is of the opinion that these
above-mentioned penalties can be assessed only by a court of
competent jurisdiction when, as in this proceeding, the tenants
that have been overcharged are subject to rent control, pursuant to
Section 2206.8 of the Rent and Eviction Regulations.
THEREFORE, in accordance with the City Rent and Rehabilitation
Law and the Rent and Eviction Regulations, it is
ORDERED, that this petition be, and the same hereby is, granted
in part, in accordance with this Order and Opinion, and that the
Administrator's order be, and the same hereby is, revoked, and it
is
Docket No. FF 610569-RT
FURTHER ORDERED, that the maximum rent of the subject
apartment, effective August 1, 1989, is $221.34 per month, and it
is
FURTHER ORDERED, that the maximum rent of the subject apartment
shall not be increased until the rent agency issues an order
restoring the rent that was reduced under Docket No. CD 610409-S,
and it is
FURTHER ORDERED, that the subject landlord may continue to
collect $15.00 per month from the subject tenants for the use of
the garage space.
Note: The tenants may bring an action against the landlord in any
court of competent jurisdiction, pursuant to Section 2206.8(a)(2)
of the Rent and Eviction Regulations, within one year after the
landlord fails to pay any refund which is owed to the tenants. The
one year time period is to be calculated from when the order
becomes final. If there is not Article 78 petition of this order,
then the time period is one year after this order becomes final.
ISSUED:
Joseph A. D'Agosta
Acting Deputy Commissioner
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