GD610134RO
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. GD610134RO
: DRO DOCKET NO. CJ610485R
NICOLETTE ASSOCIATES
TENANT: David Coley
PETITIONER :
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On April 17, 1992, the above-named petitioner-owner filed a
Petition for Administrative Review against an order issued on April
18, 1991, by the Rent Administrator, 92-31 Union Hall Street,
Jamaica, New York, concerning the housing accommodations known as
2908-10 Valentine Avenue, Bronx, New York, Apartment No. 23A wherein
the Rent Administrator determined that the owner had overcharged the
tenant.
The Administrative Appeal is being determined pursuant to the
provisions of the Rent Stabilization Law and 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 commenced on October 26, 1988 when the
tenant filed a complaint of rent overcharge. The tenant stated that
he had commenced occupancy of the subject apartment on February 15,
1987 pursuant to a two year lease at a rental of $565.00. He
believed he was being overcharged because the rent paid by most
tenants was 40 percent less than the rent for the subject apartment.
The owner was served with a copy of the tenant's complaint and
directed to submit a rental history including proof of any apartment
improvements for which a rent increase was taken.
In response to the complaint, the owner asserted that the
tenant had been served with correct apartment registrations and
there was no basis for the complaint. No proof of any apartment
improvements was submitted.
In a Final Notice of Pending Default served on the owner on
March 7, 1991 the owner was afforded a final opportunity to submit
evidence in support of the rent it was charging.
On May 2, 1991, the owner submitted a copy of a certified mail
receipt which had been postmarked some time in 1984. The record
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contains no further response by the owner.
In the order herein appealed, the owner contends that because
it had not received a copy of the Administrator's order when it was
issued, even though submitted a year after the order's issuance
date, its petition should be considered timely when received by the
Commissioner and further contends that the order should be reversed
on the basis that the Rent Administrator committed errors of fact
and of law in determining the legal stabilization rent. The owner
alleges that it submitted evidence on March 15,1989 and on May 2,
1991, documenting the legality of the rent. The owner also contends
that contrary to the Administrator's finding, it had accurately
computed the registered rent, including guideline increases, a Major
Capital Improvement (MCI) increase and an increase for individual
apartment improvements.
In reply to the petition, the tenant contends that the
Administrator's order should be upheld because the owner filed the
petition too late.
This petition is deemed timely filed as the record indicates
that the Administrator's order when issued was not delivered to the
owner but was returned to the agency as undeliverable. It is noted
that said Rent Administrator's order was not sent to the owner at
its correct address.
The Commissioner is of the opinion that this petition should
be denied.
The owner has not established its entitlement to rent increases
for Major Capital Improvements and individual apartment
improvements. Review of the record reveals that the owner failed to
submit any documentation in response to the complaint and only the
afore-mentioned 1984 certified mail receipt in response to the Final
Notice although afforded the opportunity to do so. Entitlement to
a rent increase based upon individual apartment improvements is
proved by the submission of adequate documentation, including
relevant invoices and cancelled checks or other proof of payment for
approved improvements. The record does not contain any
correspondence from the owner on March 15, 1989. With respect to
the MCI rent increase, the Commissioner notes that the owner did not
submit a copy of the order granting such increase and agency records
do not contain a grant order of an MCI application. Accordingly,
the owner could not increase the rent for either Major Capital
Improvements or individual apartment improvements.
The Rent Administrator's computations rested correctly on
registration statements filed by the owner as contained in DHCR
records. The registration statements submitted by the owner with
this appeal do not deviate from the information contained in the
previously filed registrations. Although one of the leases
submitted with this appeal does not agree with its corresponding
registration, having not been submitted for consideration by the
Administrator, the lease will not be considered by the Commissioner
in this appeal. The Commissioner will rely on the registration
records as contained in agency files. Accordingly, the Commissioner
finds that the Rent Administrator did not err in establishing the
lawful stabilization rent at $447.97 effective March 1,1989 and
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directing a $23,806.74 refund.
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 in this Order and Opinion that
the owner collected overcharges of $23,806.74. This Order may, upon
expiration of the period for seeking review of this Order and
Opinion pursuant to Article Seventy-eight of the Civil Practice Law
and Rules, be filed and enforced as a judgment or not in excess of
twenty percent per month of the overcharge may be offset against any
rent thereafter due the owner. Where the tenant credits the
overcharge, the tenant may add to the 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 order of the Rent
Administrator be, and the same hereby is, affirmed.
ISSUED
JOSEPH A. D'AGOSTA
Deputy Commissioner
GD610134RO
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