GA 610047 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 610047 RO
: DISTRICT RENT OFFICE
DOCKET NO. AH 610503 R
Paquita Martir,
TENANT: Oliver Lee
PETITIONER :
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ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
IN PART
On January 7, 1992, the above-named petitioner-owner filed a Petition
for Administrative Review against an order issued on December 12, 1991,
by the Rent Administrator, 92-31 Union Hall Street, Jamaica, New York,
concerning the housing accommodations known as 2750 Morris Avenue,
Bronx, New York, Apartment No. 4, wherein the Rent Administrator
determined that the owner had overcharged the tenant.
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 on August 28,
1986 of a rent overcharge complaint by the tenant who stated in
substance that the rent of $680.00 charged when he took occupancy in
July 1986 was too high and should be about $550.00.
In answer to the complaint, the owner stated in substance that the
apartment was owner-occupied from 1972 through 1986 and submitted bills
for new equipment and an order for major capital improvements (ZBE
610009 OM) used in calculating the tenant's rent.
The owner was directed to substantiate the owner-occupied status of the
apartment. However the owner's submission of checks from the owner to
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Con Edison in 1983-84 indicate the owner's address was in upstate New
York State and not in the subject premises. Further, the owner was
directed to provide proof of service of an amended RR1 from on the
tenant; bills for improvements; proof of registration with DHCR for
1985; and rental data from April 1, 1980. The owner submitted bills for
new tiles, sinks, shower and repairs to windows and a copy of DHCR order
ZBC 610009 OM issued September 1, 1989 granting an increase of $6.17 per
room for new windows.
During the processing of the case, the owner submitted a notarized
statement indicating that the tenant was decreased as of July 1991.
However a forwarding address on behalf of the tenant was submitted.
In Order Number ZAH 610503 R, the Rent Administrator established the
lawful stabilization rent through the default procedure as $481.01
effective July 20, 1986, determined that the tenant had been overcharged
and directed a refund to the tenant of $7,362.63 including treble
damages on that portion of the overcharge collected on and after April
1, 1984 and froze the rent due to improper registration in 1984 and non-
registration in 1985.
In this petition, the owner alleges in substance that there is no
overcharge; reiterated that the apartment was owner-occupied; and
outlined how the rent of $680.00 was established using increases for new
equipment and major capital improvements granted under ZBC 610009 OM.
The Commissioner is of the opinion that this petition should be granted
in part.
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 is barring the owner 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 prospective elimination of such penalty.
An examination of the record in this case discloses that the owner has
failed to substantiate its contention that the subject apartment was
owner-occupied prior to the tenant's occupancy from 1971 through 1986.
Further, a review of the rent control records on file with DHCR does not
support the owner's contention that the apartment was owner-occupied in
that the owner filed Rent Control MBR eligibility and other forms using
solely its current address in upstate NY and declared in the 1980 MBR
Certification that "all apartments were "decontrolled." Consequently,
the tenant appears not to be the first stabilized tenant after decontrol
by either vacancy of the rent control tenant nor by owner-occupancy as
the owner contends.
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The owner has failed to submit either proof of registration of the
subject apartment in 1985 nor substantiation that the apartment was
owner occupied in 1984 as registered nor a rental history from the base
date of April 1, 1980. Accordingly, the Rent Administrator's order
setting the tenant's rent through the default procedure and freezing the
rent due to failure to properly register in 1984 or 1985 was warranted.
The owner is correct, however, in its contention that the Rent
Administrator in setting the rent for the subject apartment at the
lowest rent for the same size apartment in the building failed to
consider increases for new equipment under Section 2522.4 of the RSC for
which the owner had submitted bills below.
The Commissioner, therefore, has adjusted the initial rent to reflect an
increase of $37.40 for new sinks, tiles, showerbody, et al, at a total
cost of 1/40 of $1,495.91 but excluded the following bills: (a) $109.90
for a toilet and installation as that is a required service; (b) $500.00
for installation of tiles by the owner's employee (c) $658.00 for
repairs to windows, plumbing and floors. In addition, the increase of
$6.17 per room granted under order ZBC 610009 OM may not be used in the
establishment of the tenant's vacancy rent as the owner contends because
both the collectible date of October 1, 1989 and the effective date of
September 1, 1987 are subsequent to the tenant's vacancy rent in July
1986 and therefore the collection of the increase granted under ZBC
610009 OM was not permitted prior to the issuance of the DHCR order
granting the increase and may not be used in the calculation of the
tenant's vacancy rent in July 1986 since the rent is frozen due to the
failure to submit a complete rental history. The addition of $37.40 for
new equipment to the rent established in the Rent Administrator's order
results in a base rent of $518.41 effective July 20, 1986.
Taking the above factors into account, the Commissioner has recalculated
the lawful stabilization rents and amount of rent overcharge for the
subject apartment, including treble damages, on the overcharge occurring
on and after April 1, 1984. The lawful stabilization rents and amount
of rent overcharge are set forth on the amended rent calculation chart
attached hereto and made a part hereof.
Because this determination concerns lawful rents only through July 19,
1987, the owner is cautioned to adjust subsequent rents to an amount no
greater than that determined by this 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
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ORDERED, that this petition for administrative review be, and the same
hereby is, granted in part, and, that the order of the Rent
Administrator be, and the same hereby is, modified in accordance with
this order and opinion. The lawful stabilization rents and the amount
of the rent overcharge are established on the attached chart which is
fully made a part of this order. The amount of the rent overcharge
through July 19, 1987 is $5,978.83.
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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