GA 210036 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
------------------------------------X
IN THE MATTER OF THE ADMINISTRATIVE ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.: GA 210036 RO
DRO DOCKET NO.: ZDL 210382 R
ALPHANSO CAMPBELL
LINDEN ASSOCIATES, TENANT: LURNA BARNES
PETITIONER
------------------------------------X
ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On January 15, 1992, the above-named petitioner-owner filed a
Petition for Administrative Review against an order issued on
January 7, 1992, by the Rent Administrator, 92-31 Union Hall
Street, Jamaica, New York, concerning the housing accommodations
known as 353 Linden Boulevard Brooklyn, New York, Apartment No.
1B, 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 of a rent
overcharge complaint by the tenant in December 1989.
The owner was directed to provide proof that the subject apartment
was registered with DHCR in 1984 and that the Rent Stabilized
tenant in occupancy on April 1, 1984 was served a copy of the
initial apartment registration (RR1 form). The owner was advised
that failure to comply may result in a default procedure to
establish the tenant's initial rent and the imposition of treble
damages. The owner was further advised to submit a complete rent
history from April 1, 1980.
In response to the tenant's complaint, the owner submitted a copy
of the Landlords' Report of Statutory Decontrol (R42) indicating a
September 1978 decontrol date; a lease in effect from October 1,
1982 through September 30, 1984 for a prior tenant at a rental of
$306.00 plus an affidavit from the Rent Stabilization Association
along with an apartment print-out and postal documents indicating
mailing of the 1986 annual registrations.
GA 210036 RO
In Order Number ZDL 210382 R, the Rent Administrator determined
that due to the owner's failure to submit a complete rental
history, the owner had collected a rent overcharge of $16,364.12
including treble damages on that portion of the overcharge
occurring after January 1, 1988 and interest on the portion from
March 11, 1987 through December 30, 1987. In addition, the rent
was frozen at the default rent of $429.18 from March 11, 1987 due
to the owner's failure to properly register the subject apartment
in 1984 and 1985.
In this petition, the owner contends in substance that the order
should be reversed because the tenant had taken initial occupancy
in March 1989 and not March 1987 as cited in the order; the subject
building was registered in 1984 and 1985; renovations in the amount
of $4,370.00 made to the subject apartment in March 1987 were not
considered by the Rent Administrator; the owner was just notified
of the proceeding in 1991 and therefore was not required to produce
any records in excess of 4 years prior to 1991 and that the tenant
has paid $500.00 in rent and not $545.00 for the past year and
credit should be given for arrears.
Along with the petition, the owner submitted various bills dated
in May 1987, November 1987, July 1988 and October 1989; renewal
leases in effect from January 1, 1987 through February 28, 1991 and
the 1984 and 1985 RSA affidavit of service of the apartment
registration on the tenants listed on the Apartment Registration
list with mailing documentation.
In answer to the owner's petition, the tenant stated in substance
that she had proven by the submission of rent receipts to the Rent
Administrator that her occupancy commenced in March 1987 and that
no new equipment or renovations were done as the owner alleges.
The Commissioner is of the opinion that this petition should be
denied.
An examination of the record in this case discloses that, to date,
neither the subject apartment or building are registered with DHCR
for 1984 or 1985.
The proof submitted by the owner of the RSA mailing does not prove
service on DHCR but only on the tenant. Moreover, no copy of the
actual initial apartment registration was included with the proofs
of mailing.
Further, the owner's contention that the tenant took initial
occupancy in March 1989 rather than March 1987 is not supported by
the evidence including the 1987 rent receipts submitted by the
tenant nor the lease submitted by the owner purported to be the
tenant's initial lease in March 1989 since that lease is a renewal
lease and not a vacancy lease.
The Commissioner rejects the owner's contention that it was
required to produce rental records only four years prior to 1991 as
without merit.
Section 2526.1 of the RSC limits the submission of records to four
years prior to the filing of the complaint. Moreover, the owner's
GA 210036 RO
failure to substantiate the filing of the initial registration
permits the Rent Administrator to request rental history back to
the base date of April 1, 1980 in order to establish the initial
legal registered rent.
Further, an examination of the records in this case discloses that
in the proceeding before the Rent Administrator, the owner did not
submit the bills for new equipment or RSA proofs of service
although afforded an opportunity to do so and has not submitted a
reasonable excuse for its failure to do so. Since this is not a de
novo proceeding the owner's contention that it properly served the
tenants with the registered rents as required and that increases
for new equipment should be added to the rent cannot be
considered for the first time on appeal.
Accordingly, the Rent Administrator's order was warranted.
Because this determination concerns lawful rents only through
January 31, 1992, 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 or not in excess of twenty percent per month
thereof may be offset against any rent thereafter due the owner.
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.
ISSUED
JOSEPH A. D'AGOSTA
Acting Deputy Commissioner
|
