GA 210009 RO
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. GA 210009 RO
: DISTRICT RENT OFFICE
Yvonne McLeod - owner, DOCKET NO. ZDF 210296 R
and
Andrea Lingstuyl - TENANTS: Johnnie Miller/
managing agent, William Campbell
PETITIONER :
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On January 7, 1992, the above-named petitioner-owner and managing agent
filed a Petition for Administrative Review against an order issued on
December 5, 1991, by the Rent Administrator, 92-31 Union Hall Street,
Jamaica, New York, concerning the housing accommodations known as
251 Lexington Avenue, Brooklyn, New York, Apartment No. 3R, wherein the
Rent Administrator determined that the owner had overcharged the tenant
and froze the collectible rent due to the owner's failure to register
the apartment.
The Administrative Appeal is being determined pursuant to the provisions
of Section 2526.1 of the Rent Stabilization Code.
The issue herein is whether the Rent Administrator's order was
warranted.
The Commissioner has reviewed all of the evidence in the record and has
carefully considered that portion of the record relevant to the issue
raised by the administrative appeal.
This proceeding was originally commenced by the filing of a rent
overcharge complaint by the tenants in June 1989 in which it was stated
that the apartment was not properly registered during the occupancy of
the prior tenant who paid a much lower rent.
The owner and manager each submitted copies purportedly of the initial
apartment registration (RR1) and a renewal lease commencing April 1,
1985 for the prior tenant. These copies contained contradictory rental
data. The manager's submitted lease and RR1 stated the initial rent as
$370.00 whereas the owner's submitted RR1 indicated a April 1, 1984 rent
of $200.00 and a renewal lease rent of $230.00. In addition, the
owner's submission of the RR1 was accompanied by an affidavit of service
by the RSA with the apartment registration list.
The owner was directed to provide an explanation for the discrepancies
and also to submit any bills for improvements, a complete rental history
GA 210009 RO
from April 1, 1984 and proof of registration with DHCR for 1984 and
1985. Neither the owner nor the manager complied with the Rent
Administrator's directive.
In Order Number ZDF 210296 R, the Rent Administrator established the
lawful stabilized rent as $200.00 effective April 1, 1985, determined
that the tenants had been overcharged and directed a refund to the
tenants of $44,085.63, including interest prior to May 14, 1987 and
treble damages on overcharges thereafter, and froze the rent at $200.00
due to the owner's failure to register the subject apartment in 1984 and
1985.
In this petition, the owner contends in substance that the order should
be reversed because the Rent Administrator failed to "consider the
equities"; that the rent should not have been frozen at $200.00 due to
non-registration because it was registered from 1984 through 1991; and
that the owner wants to see the "DRO record" and supplement its
petition. During the pendency of the appeal, the tenants vacated
without a forwarding address.
The Commissioner is of the opinion that this petition should be denied.
Sections 2528.2 and 2528.3 of the Rent Stabilization Code (hereafter
RSC) outline the owner's obligations under the Omnibus Housing Act to
register subject housing accommodations with DHCR.
Section 2528.4(a) of the RSC provides, in pertinent part, that the
penalty for failure to initially register an apartment will be that the
owner will be barred from collecting any rent in excess of the legal
regulated rent in effect on the date the housing accommodation became
subject to the registration requirements and that the late filing of the
registration shall result in the elimination prospectively of such
penalty.
An examination of the record in this case discloses that the subject
apartment was not registered with DHCR for 1984; it that a registration
was found for 1985 under a different apartment designation (3 right) at
a rent of $230.00; that although given an opportunity, the owner failed
to submit either below or on appeal proof that it filed a 1984 initial
registration with DHCR or substantiate that a rent of $370.00 was paid
by the prior tenant.
Due to the contradictory submissions sent by the manager and owner, the
"Notice of Intention to Impose Treble Damages" dated September 18, 1991
(referred to by the petitioner) cited a defaulted initial rent based on
the $370.00 rent contained in the manager's submission. The subsequent
submission by the owner of the RR1 citing the $200.00 rent of April 1,
1984, accompanied by the RSA mailing documents was considered more
credible by the Rent Administrator and utilized as the base rent in
effect on April 1,1984 and the rent of $200.00 was frozen pursuant to
Section 2528.4(a).
The Commissioner rejects the owner's contention that it had proven
registration with DHCR by its submission of the RSA mailing documents
and affidavits. These documents serve only to attest to service of the
RR1 on the tenant and not the filing of the registration forms with DHCR
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which remains the owner's obligation.
Further, DHCR records indicate that to date the owner has failed to file
a request for access to review the case files under the Freedom of
Information Law (F.O.I.L.) or to supplement its petition. Therefore,
the Commissioner rejects that portion of the owner's appeal as without
merit.
Accordingly, the Rent Administrator's order was warranted.
Because this determination concerns lawful rents only through May 14,
1991, the owner is cautioned to adjust subsequent rents to an amount no
greater than that determined by the Rent Administrator's order plus any
lawful increases, and to register any adjusted rents with this order and
opinion being given as the explanation for the adjustment.
This order may, upon the expiration of the period in which the owner may
institute a proceeding pursuant to Article 78 of the Civil Practice Law
and Rules, be filed and enforced in the same manner as a judgment.
THEREFORE, in accordance with the provisions of the Rent Stabilization
Law and Code, it is
ORDERED, that this petition for administrative review be, and the same
hereby is, denied, and, that the order of the Rent Administrator be, and
the same hereby is, affirmed.
A copy of this order is being served on the current occupant of the
subject apartment.
ISSUED:
JOSEPH A. D'AGOSTA
Acting Deputy Commissioner
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