GB610289RO
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. GB610289RO
: DRO DOCKET NO. DJ610301R
Gionta Realty Corp.,
TENANT: Mike Marquez
PETITIONER :
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ORDER AND OPINION REMANDING PROCEEDING TO THE RENT
ADMINISTRATOR
On February 13, 1992, the above-named petitioner-owner filed a
Petition for Administrative Review against an order issued on
January 8, 1992, by the Rent Administrator, 92-31 Union Hall Street,
Jamaica, New York, concerning the housing accommodations known as
745 Nereid Avenue, Bronx, New York, Apartment No. 4B, 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 on October 20, 1989. The
complaint stated that the tenant took occupancy on March 31, 1983
pursuant to a one year lease commencing on March 31, 1983 and
terminating on March 31, 1984 at a rent of $250.00 per month. The
complaint then stated that, after four years, the rent was increased
to $280.00 and then, commencing in April, 1989, to $348.42. A copy
of the one year lease commencing on April 1, 1989, stating a monthly
rent of $348.42, was included with the complaint.
The owner was served with a copy of the complaint and was directed
to submit a complete rent history from the base date, including
copies of all leases.
In response to the complaint, the owner categorically denied that
there was any overcharge, and submitted a rent calculations chart
showing how all rent increases were determined. The chart listed an
initial legal registered rent of $286.00 on April 1, 1984, which
amount was the same as on the initial registration. However, the
owner submitted no lease for any period which was included in the
GB610289RO
rent chart.
In an order issued on January 8, 1992, the Rent Administrator
determined that the tenant had been overcharged in the amount of
$20,124.59, including treble damages, interest and excess security.
The order stated that the owner filed the initial registration,
which listed a rent of $250.00, but then failed to file annual
registrations for all subsequent years except 1989. As a result, the
collectible rent was frozen at $250.00 per month.
In its petition, the owner disputes the Administrator's findings on
the amount of rent charged the tenant and the failure to file
registration statements. The owner states that that the legal
registered rent on April 1, 1988 was $348.60, but that only $286.00
was collected. Therefore, the tenant was undercharged. In addition,
the owner encloses copies of the initial and annual registration
statements, although several are poorly photocopied and illegible.
The initial registration statement and the 1985 and 1986
registration statements submitted by the owner are date-stamped
received by the DHCR in September, 1991. The 1987, 1988, 1990 and
1991 registration forms do not have legible date stamps.
The Commissioner is of the opinion that the proceeding should be
remanded to the Rent Administator for a new determination.
From an examination of the record and DHCR registration records, it
appears that the Administrator's finding of an initial registered
rent of $250.00 is incorrect. The owner's claim that the initial
registered rent was $286.00 per month is listed in the DHCR's
registration records and is documented by a lease submitted with the
petition which was not submitted below. The tenant in one of his
complaint forms indicates that the rent on April 1, 1984 was $280.00
per month. Furthermore, the finding that the owner failed to file
annual registrations, except for the year 1989, is also contradicted
by filing records; all years are currently on file, but, commencing
in 1986, which was the first year for which DHCR records note the
date of filing, through the year 1991, the records show a filing
date in September, 1991, with the exception of 1989, which was
timely filed. Therefore, rent increases subsequent to the initial
registered rent are not collectible prior to the filing of the
annual registrations in 1991. Total overcharges cannot be
calculated, however, without additional documentation of the rent
history. The Administrator must confirm the amount of rent charged
and paid subsequent to the initial registered rent of $286.00 in
order to determine actual overcharges.
The proceeding must therefore be remanded for additional evidence on
the amounts of rent charged. Copies of leases and rent receipts must
be submitted, if available; without them, a hearing may be required.
If overcharges are again determined, the Administrator shall address
the issue of willfulness, and whether treble damages should be
applied.
THEREFORE, in accordance with the Rent Stabilization Law and Code,
it is
GB610289RO
ORDERED, that this petition be and the same hereby is granted to the
extent of remanding this proceeding to the Rent Administrator for
further processing in accordance with this order and opinion. The
automatic stay of so much of the Rent Administrator's order as
directed a refund is hereby continued until a new order is issued
upon remand. However, the Administrator's determination as to the
rent is not stayed and shall remain in effect, except for any
adjustments pursuant to lease renewals, until the Administrator
issues a new Order upon remand.
ISSUED
LULA M. ANDERSON
Deputy Commissioner
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