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. GL210204RO
: DRO DOCKET NO.GD210276R
DOROTHY SCHECTER TENANT: CHARLES MAROTTA
PETITIONER :
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On December 16, 1992, the above-named petitioner-owner filed a
Petition for Administrative Review against an order issued on
November 13, 1992, by the Rent Administrator, 92-31 Union Hall
Street, Jamaica, New York, concerning the housing accommodations
known as 329 East Second Street, New York, New York, Apartment No.
2R (4), 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 commenced by the filing of an overcharge
complaint by the tenant in April 1992. In such complaint, the
tenant stated that he first moved to the subject apartment in
January 1992 at a rental of $675.00 per month and that the rent was
then increased to $700.00 per month effective April 1, 1992.
In an answer to the tenant's complaint filed on May 16, 1992,
the owner stated in substance that improvements totalling $13,245
were installed in the subject apartment including electric fixtures
installed in November 1990; electric fixtures, sockets and switches
installed in February 1991; removal of illegal drop ceilings in two
bedrooms; installation of sheetrock and plastered ceiling and
painting by contractor Jaime Oquendo in January and February 1991;
installation of new kitchen cabinets, new kitchen sink, new kitchen
floor, new tile wall and floor in bathroom, new gas stove, new
sheetrock ceilings by D & M Custom Woodwork Co. in July 1991 at a
cost of $4400; removal of defective flooring throughout apartment
and installation of new beams, reinforced underflooring and
installation of new flooring in March 1991; and installation of new
stove and refrigerator in January 1991. Copies of some bills and
cancelled checks were submitted in support of the owner's
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contentions.
During the course of the proceeding, the tenant stated in
substance that the only new items he saw when he moved to the
subject apartment were a new stove and a new refrigerator.
On September 15, 1992, the owner was sent a request for
additional information by the DHCR directing her to submit proof of
tenant's consent to the electrical installation work done in
November 1990 and February 1991; an itemized breakdown of costs for
each claimed improvement item with corresponding proof of payment;
and copies of cancelled checks for the appliance items claimed.
In a response dated September 15, 1992, the owner stated in
substance that D & M Custom Woodwork did not in fact do any work in
the subject apartment and that the owner was withdrawing the bills
and cancelled checks for such company as they were submitted in
error; that in March 1991, George Floor Scraping replaced all
deteriorated wood in the apartment, reinforced the underflooring,
reinforced the kitchen floor and installed vinyl on same, and sanded
the floors at a cost of $2,000; repeated claims as to the electric
work done in the subject apartment in November 1990 and stated that
this work was done when a prior tenant told her he was planning on
moving; that a new wooden front entrance door and new bathroom door
were installed on February 7, 1991 at a total cost of $94.07; that
a new marble vanity was installed in January 1991 at a total cost of
$216.37; repeated claims as to the work done by Jaime Oquendo and
the fact that a new stove and refrigerator were installed; and
stated that the following work was done by Carlos Melendez at a
total cost of $3,138.45 between January and April 1991 -
installation of new stove, removed all of the defective flooring
throughout apartment, removed rotted beams, installed new beams,
reinforced underflooring and installed new flooring, installed new
kitchen cabinets, new kitchen sink, new tile on kitchen floor,
installed new tile wall, new tile floor, new bathroom sink and
cabinet in bathroom. It was also stated that Mr. Melendez supplied
the labor but that the owner supplied all of the appliances and
materials. In support of the owner's contentions, copies of bills
and cancelled checks for the various contractors and for the new
vanity, stove and refrigerator and a copy of an affidavit from
Carlos Melendez were submitted, but no bills were submitted for the
kitchen cabinets, kitchen sink, and bathroom sink.
On September 29, 1992, the owner was sent a request for
additional information by the DHCR and directed to explain why the
affidavit of Carlos Melendez stated that he replaced flooring
throughout the apartment whereas George Floor Scraping claims to
have done the same thing, and further directed the owner to supply
proof of the prior tenant's consent to the electrical work done in
the apartment.
In a response dated October 14, 1992, the owner stated in
substance that the complaining tenant died two weeks ago; that
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Mr.Melendez was mistaken in stating that he installed flooring
throughout the subject apartment whereas he installed a new bathroom
floor in tile after reinforcing the beams and the wood below in the
bathroom but that the rest of the Melendez affidavit was correct and
that the prior tenant burned out the existing wiring and that is why
it had to be replaced.
In Order Number GD210276R, the Rent Administrator determined
that the tenant had been overcharged in the amount of $8,163.21 from
January 15, 1992 through October 31, 1992 (the month of the tenant's
death) including treble damages. The Rent Administrator allowed
rent increases only for the new refrigerator, new stove and new
vanity. Further, the Rent Administrator determined the lawful
stabilization rent of the subject apartment was $428,71 as of April
1, 1992.
In this petition, the owner alleges in substance that the owner
should have been credited for all improvements made in the subject
apartment, that the tenant did not always pay the correct rent and
that in any event, the imposition of treble damages was not
warranted.
Subsequently, the owner submitted a copy of a settlement
statement wherein the tenant's father as executor of the tenant's
estate received a monetary payment to settle the overcharge
complaint of the tenant. A copy of the general release signed by
the tenant's father dated June 15, 1993 was also submitted.
The Commissioner is of the opinion that this petition should be
denied.
An examination of the record in this case discloses that the
owner did not submit sufficient evidence to substantiate some of the
claimed improvements for which a rent increase was not allowed by
the Rent Administrator. Further some of the items appear to have
been claimed twice or were ordinary repairs or maintenance work for
which no rent increase is warranted such as painting, sanding of
floors and sheetrock work. Finally, some of the work was done while
a prior tenant was in occupancy of the subject apartment and the
owner did not submit written proof of such prior tenant's consent as
required. Accordingly, the Rent Administrator's order was warranted
in allowing a rent increase only for the refrigerator, stove and
marble vanity.
With regard to the owner's settlement of the overcharge
complaint with the tenant's estate, it is noted that the rights of
future tenants pursuant to the Rent Administrator's order remain
unaffected by this settlement. However, to the extent that the
stipulation purports to settle arrearages, the Commissioner notes
that this is a contractual matter between the parties not within the
purview of the Rent Stabilization Law and Code, and not subject to
jurisdiction of the DHCR. With respect to the issue of treble
damages, it is noted that such issue has been rendered moot by the
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monetary settlement with the tenant's estate. A copy of this order
is being sent to the current occupant of the subject apartment.
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.
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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