DOCKET NO.: GA420173RO
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 : S.J.R. NO. 7244
APPEAL OF ADMINISTRATIVE REVIEW
: DOCKET NO. GA420173RO
ROBERT PULLMAN, DISTRICT RENT ADMINISTRATOR'S
: DOCKET NO. EI420033RP
PETITIONER
:
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ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW IN PART
On January 8, 1992, the above-named landlord filed a petition for
administrative review of an order issued on December 6, 1991 by a Rent
Administrator concerning the housing accommodation known as Apartment 1A, 37
East 30th Street, New York, New York.
Subsequently, the subject landlord filed a petition in the Supreme Court of
the State of New York, pursuant to Article 78 of the Civil Practice Law and
Rules, in the nature of an application for a writ of mandamus, requesting
that a determination of the petitioner's administrative appeal be issued.
After considering the Article 78 petition, the Court issued an order
remitting the proceedings to the New York State Division of Housing and
Community Renewal (D.H.C.R.) for further consideration.
The Commissioner has reviewed all the evidence in the record and has
considered that portion of the record relevant to the issues raised by the
petition for administrative review.
On February 17, 1988, the subject tenant filed with the D.H.C.R. an
overcharge complaint. In her complaint, the subject tenant asserted that
the landlord is collecting rent in excess of the subject apartment's maximum
rent.
In his response, dated September 14, 1988, the subject landlord asserted,
among other things, that in 1922 the subject tenant rented professional
space in the subject building consisting of three rooms and a bathroom; that
in approximately 1945 the subject tenant rented an apartment which was
registered as apartment 1A, which adjoined the professional space; that
subsequently, the tenant began using the professional space as an extension
of her apartment; that the rent collected by the subject landlord included
apartment 1A and the former professional space, and that the tenant has not
been overcharged because the rent for the professional space was calculated
by the landlord as if it was rent controlled.
On October 12, 1988, the Administrator issued an order under Docket No.
CB420558R, which established maximum rents for the subject apartment.
DOCKET NO.: GA420173RO
On November 15, 1988, the subject landlord filed a petition for
administrative review of the above-mentioned order. In the above-mentioned
petition, the subject landlord asserted, among other things, that in
calculating the subject apartment's maximum rents the Administrator did not
include the professional space first utilized by the subject tenant in 1922.
The Commissioner issued an order on June 29, 1990 under Docket No.
CK420027RO. The above-mentioned order determined, based upon the rent
agency's records, that the subject apartment was registered with the rent
agency as containing five rooms; that the tenant has been using the business
portion of the subject apartment for residential purposes in conjunction
with the rest of the subject apartment; that the entire subject apartment,
including the business and residential portion, is subject to rent control,
and that: "Pursuant to Section 2202.22 this proceeding is being remanded to
the Rent Administrator to redetermine the maximum collectible rent rates for
the subject apartment to include an allowance for the 'business' portion of
the subject apartment in such redetermination."
Pursuant to the above-mentioned Commissioner's order, the Administrator
issued the order under review herein on December 6, 1991 under Docket No.
EI420033RP. The Administrator's order determined that the subject
apartment's maximum rent is $326.50 per month effective August 1, 1970; that
the rent consisted of $126.50 per month for the residential portion and
$200.00 per month for the professional portion; that, based upon the
issuance by the rent agency of subsequent orders which granted the landlord
maximum base rent (M.B.R.) increases, the subject apartment's maximum rent
had been increased to $723.40 per month effective January 1, 1991, and that
the above-mentioned rents do not include the $20.36 per month fuel cost
adjustment for the subject apartment's eight rooms.
In the landlord's petition he asserts, among other things, that in the order
under review herein the Administrator undercalculated the subject
apartment's maximum rent, and that the subject tenant must commence an
overcharge complaint within "two years from the date of occurrence of an
overcharge."
After careful consideration, the Commissioner finds that the landlord's
petition should be granted in part.
The record reflects that the subject apartment was registered with the
maximum base rent (M.B.R.) system as containing five rooms, and that the
rent agency's initial calculation of the subject apartment's M.B.R. was
$245.97 per month effective January 1, 1972.
As the aforementioned Commissioner's order issued on June 29, 1990 under
Docket No. CK420027RO determined that both the residential and business
portion of the subject apartment were rent controlled, the Commissioner
points out that the Administrator in the proceeding under Docket No.
EI420033RP recalculated the subject apartment's maximum rent and its M.B.R.
based upon the subject apartment containing eight rooms (the residential
portion contained five rooms and the business portion contained three
rooms).
The Commissioner notes that in the order under review herein, the
Administrator established that the subject apartment's maximum rent
DOCKET NO.: GA420173RO
effective August 1, 1970 was $326.50 per month.
The record reflects that the rent agency recalculated the subject
apartment's initial M.B.R. to include both the residential and business
portions of the subject apartment. The Commissioner notes that the subject
apartment's initial M.B.R. was recalculated to be $422.36 per month
effective January 1, 1972.
The rent agency's records reflect that the rent agency granted the landlord
M.B.R. increases for the period from 1974 through 1979.
Based upon the biennial increases to the subject apartment's M.B.R., as
calculated pursuant to the respective orders of eligibility, the
Commissioner notes that the subject apartment's M.B.R. effective January 1,
1978 was increased to $609.39 per month.
Based upon the 7.5% annual increase to the subject apartment's maximum rent,
as provided for in the respective orders of eligibility, the Commissioner
notes that the subject apartment's maximum rent effective January 1, 1978
was $541.68 per month.
The record in this proceeding reflects that in calculating the subject
apartment's maximum rent effective January 1979, the Administrator did not
increase the subject apartment's maximum rent effective on December 31 1978
by 7.5%.
The Commissioner finds the subject apartment's maximum rent effective
January 1, 1979 should be increased to $582.31 per month.
In the order issued on January 24, 1980 under Docket No. 4M4400, the
Commissioner notes that the rent agency denied the landlord M.B.R. increases
for the 1980-1981 period.
In the order issued on February 18, 1982 under Docket No. 5M2721, the
Commissioner notes that the rent agency granted the landlord M.B.R.
increases for the 1982-1983 period effective January 1, 1982.
In calculating the 1982-1983 M.B.R. when the last M.B.R. increase was
granted in 1978-1979, as in this proceeding, the Commissioner notes that the
1978-1979 M.B.R. should be increased by 22.1%, pursuant to the applicable
M.B.R. factor promulgated by the rent agency.
As the subject apartment's 1978-1979 M.B.R. was $609.39, the Commissioner
finds that the subject apartment's 1982-1983 M.B.R. should be increased to
$744.07 per month ($609.39 X 22.1%).
The Commissioner finds that the subject apartment's maximum rent effective
January 1, 1982 should be $625.98 per month ($582.31 X 7.5%), and that the
subject apartment's maximum rent effective January 1, 1983 should be $672.93
per month ($625.98 X 7.5%).
In the order issued on August 9, 1985 under Docket No. 6M2942, the
Commissioner notes that the rent agency granted the landlord M.B.R.
increases for the 1984-1985 period effective July 1, 1984.
Pursuant to the above-mentioned order, the Commissioner notes that the
DOCKET NO.: GA420173RO
subject apartment's 1982-1983 M.B.R. should be increased by 7.5% in
calculating the 1984-1985 M.B.R. The Commissioner finds that the subject
apartment's 1984-1985 M.B.R. should be increased to $799.88 per month
($744.07 X 7.5%) effective July 1, 1984.
Pursuant to the aforementioned order, the Commissioner notes that the
subject apartment's maximum rent effective July 1, 1984 should be $723.40
per month ($672.93 X 7.5%), and that the subject apartment's maximum rent
effective January 1, 1985 should be $777.66 per month ($723.40 X 7.5%).
In the order issued on September 30, 1988 under Docket No. 7M02468M
(7MI02468M), the Commissioner notes that the rent agency granted the
landlord M.B.R. increases for the 1986-1987 period effective January 1,
1986.
Pursuant to the aforementioned order, the Commissioner notes that the 1984-
1985 M.B.R. should be increased by 11.5% in calculating the 1986-1987 M.B.R.
The Commissioner finds that the subject apartment's 1986-1987 M.B.R. should
be increased to $891.87 per month effective January 1, 1986 ($799.88 X
11.5%).
Pursuant to the aforementioned order, the Commissioner finds that the
subject apartment's maximum rent effective January 1, 1986 should be $835.98
per month ($777.66 X 7.5%), and that the subject apartment's maximum rent
effective January 1, 1987 should be $891.87 per month ($835.98 X 7.5% equals
an amount in excess of the subject apartment's 1986-1987 M.B.R., and
therefore the subject apartment's maximum rent effective January 1, 1987
should equal the subject apartment's 1986-1987 M.B.R.).
The Commissioner notes that the rent agency issued an order on July 6, 1987
under Docket No. BC420376S which reduced the subject apartment's maximum
rent by $11.00 per month based upon the Administrator's finding of a
diminution of services in the subject apartment.
Accordingly, the Commissioner finds that the subject apartment's maximum
rent effective August 1, 1987 should be $880.87 per month ($891.87 - 11.00).
The record reflects that the subject landlord did not file a petition for
administrative review of the aforementioned order issued under Docket No.
BC420376S. The record further reflects that the subject landlord did not
file an application to restore the subject apartment's maximum rent.
Accordingly, the Commissioner finds that the Administrator's order issued on
July 6, 1987 under Docket No. BC420376S is a final determination of the rent
agency; and that the above-mentioned order reducing the subject apartment's
maximum rent, based upon the Administrator's finding of a diminution in
services, is currently in effect.
DOCKET NO.: GA420173RO
Although subsequent M.B.R. orders of eligibility issued by the rent agency
are still in effect, pursuant to the provisions of Policy Statement 90-1,
the Commissioner finds that the subject landlord is barred from collecting
any subsequent maximum rent increases until the rent agency issues an order
restoring the rent to the level in effect prior to the issuance of the
aforementioned order issued under Docket No. BC420376S.
Based upon all of the above-mentioned facts, the Commissioner finds that the
Administrator's order under review herein should be modified to reflect the
fact that the subject apartment's maximum rent effective January 1, 1991
should be increased to $880.87 per month.
As to the landlord's assertion that pursuant to the applicable rent
regulations the subject tenant must commence an overcharge complaint within
"two years from the date of occurrence of an overcharge," the Commissioner
finds that that assertion does not bar the rent agency from calculating and
updating the subject apartment's M.B.R. and its maximum rent, in this
proceeding, from its inception into the M.B.R. system through the effective
date of the Administrator's order under review herein.
If the subject tenant or the subject tenant's estate is owed money resulting
from this order and opinion, the Commissioner notes that the subject tenant
or the tenant's estate may bring an action against the landlord in any court
of competent jurisdiction, pursuant to Section 2206.8(a)(2) of the City Rent
and Eviction Regulations, within one year after the landlord fails to pay
any refund which is owed to the tenant or the tenant's estate. The one-year
time period is to be calculated from when the order becomes final. If there
is no Article 78 petition of this order, then the time period is one year
after this order becomes final.
The Commissioner finds that if there are any retroactive rents due to the
landlord as a result of this order increasing the subject apartment's
maximum rent effective January 1, 1991, such retroactive rents are due
immediately.
The Commissioner points out that the rents noted in this order and opinion
do not include fuel cost adjustments the subject landlord may be entitled to
collect.
THEREFORE, in accordance with the City Rent and Rehabilitation Law and the
Rent and Eviction Regulations, it is
ORDERED, that the landlord's petition be, and the same is, granted in part,
and that the Administrator's order be, and the same hereby is, modified in
accordance with this order and opinion; and it is
FURTHER ORDERED, that the subject tenant's maximum rent effective January 1,
1991 shall be $880.97.
ISSUED:
JOSEPH A. D'AGOSTA
Deputy Commissioner
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