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

          ------------------------------------X 
          IN THE MATTER OF THE ADMINISTRATIVE :  ADMINISTRATIVE REVIEW
          APPEAL OF                              DOCKET NO.  GD610134RO
                                              :  DRO DOCKET NO. CJ610485R
                NICOLETTE ASSOCIATES                                          
            
                                                 TENANT:  David Coley
                                PETITIONER    : 
          --------------------------
                                       
            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 


          GD610134RO

          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




                     




















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