GL110063RO
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. GL110063RO
: DRO DOCKET NO.ZGJ110009RP
SAXONY HEIGHTS REALTY ASSOCIATES TENANT: KENNETH B. RUBIN
PETITIONER :
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On December 21, 1992, the above-named petitioner-owner filed a
Petition for Administrative Review against an order issued on
November 18, 1992, by the Rent Administrator, 92-31 Union Hall
Street, Jamaica, New York, concerning the housing accommodations
known as 88-11 34th Avenue, Queens, New York, Apartment No. 4N,
wherein the Rent Administrator affirmed a prior Rent Administrator's
order finding that the tenant had been overcharged in the total
amount of $40,816.48 including treble damages on that portion of the
overcharge occurring on and after April 1, 1984.
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 in October, 1984, by
the filing of a tenant's objection to the apartment registration
including a rent overcharge complaint. On February 27, 1990, the
Rent Administrator issued an order under docket 23844 finding a rent
overcharge of $40,816.48 on the basis that the owner had failed to
submit a rental history from April 1, 1980. In said order, the
lawful stabilization rent was established at $177.19.
The owner filed a petition for administrative review against
the February 27, 1990 Rent Administrator's order and said petition
was denied on July 12, 1991 under docket number EC110399RO. The
owner thereafter commenced a proceeding in Supreme Court pursuant to
Article 78 of the Civil Practice Law and Rules challenging the
Commissioner's order. By judgment dated September 3, 1991, Justice
Angelo Graci ordered that the matter be remitted to the DHCR for the
limited purpose of setting forth the basis for the rent reduction -
that is how the rent was set at $177.19. The finding of a rent
overcharge and the imposition of treble damages was upheld.
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In an order issued on April 27, 1992, under docket number SJR
5667, EC110399RO, the Commissioner modified his prior order and
opinion to show the basis for setting the rent at $177.19 - that
said rent was the lowest stabilized rent for the same size apartment
in the building - and finding the same overcharge - $40,816.48. The
owner thereafter commenced a second Article 78 proceeding
challenging the Commissioner's order issued on April 27, 1992. By
judgment dated February 25, 1993, Justice Lane denied the owner's
petition and upheld the Commissioner's order in its entirety.
On November 18, 1992, under docket ZGJ110009RP, (the order
appealed herein), the Rent Administrator affirmed the earlier Rent
Administrator's order issued on February 27, 1990.
In this appeal, the owner contends in substance that the owner
did submit the required rental history and that the imposition of
treble damages was not warranted.
The Commissioner is of the opinion that this petition should be
denied.
As shown by the aforementioned history of the case including
the two court proceedings, the owner has already appealed the
finding of rent overcharge in court and the court has upheld the
overcharge finding. The owner is not permitted to relitigate the
issue a second time before the DHCR, but most pursue the matter in
a court appeal if it so chooses. Further, the Rent Administrator
incorrectly issued a second order in this matter since the earlier
order was upheld in the DHCR review proceeding and in court.
Accordingly, such second Rent Administrator's order (the order under
review herein) is hereby revoked with the Rent Administrator's
original order issued on February 27, 1990 under docket number 23844
finding a rent overcharge of $40,816.48 remaining in full force and
effect.
The owner is directed to reflect the findings and
determinations made in this order on all future registration
statements, including those for the current year if not already
filed, citing this order as the basis for the change. Registration
statements already on file, however, should not be amended to
reflect the findings and determinations made in this order. The
owner is further directed to adjust subsequent rents to an amount no
greater than that determined by this order plus any lawful
increases.
The Commissioner has determined that the owner collected
overcharges of $40,816.48. This order may, upon expiration of the
period for seeking review of this Order and Opinion pursuant to
Article 78 of the Civil Practice Law and Rules, be filed and
enforced as a judgment or not in excess of twenty percent per month
thereof may be offset against any rent thereafter due the owner.
Where the tenant credits the overcharge, the tenant may add to the
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overcharge, or where the tenant 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 this petition for administrative review be, and
the same hereby is, denied, and, that the second order of the Rent
Administrator be, and the same hereby is, revoked, with the original
Rent Administrator's order issued on February 27, 1990, under docket
number 23844 finding a rent overcharge of $40,816.48 remaining in
full force and effect.
ISSUED
JOSEPH A. D'AGOSTA
Deputy Commissioner
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