HJ410221RO
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. HJ410221RO
: DRO DOCKET NO. FH410247R
MANUEL MARTINEZ TENANT: BARBARA YANOSCIK
PETITIONER :
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On August 3, 1994, the above-named petitioner-owner filed a
Petition for Administrative Review against an order issued on
June 30, 1993, by the Rent Administrator, 92-31 Union Hall Street,
Jamaica, New York, concerning the housing accommodations known as
242 West 71 Street, New York, New York, Apartment No. 1F
wherein the Rent Administrator determined that the owner had
overcharged the tenant.
The Administrative Appeal is being determined pursuant to the
provisions of Sections 2522.6, 2522.7 and 2521.1 (c)(2) 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 on
August 12, 1991 of a rent overcharge complaint by the tenant.
In response to the tenant's complaint, the owner stated in
substance that the tenant's occupancy was only temporary pursuant to
a signed agreement and that the rent being charged was less than
could have been legally charged. The owner stated that the last
lawful rent had been $410.89 to which could have been added $129.95
for individual improvements made to the apartment prior to the
tenant's occupancy at a total cost of $5198.00, as well as
guidelines increases and rent increases for building wide
improvements.
In a final notoice sent to the owner on May 25, 1993, the owner
was notified that the first rent would be established at $500.00 and
that treble damages would be imposed on the presumed willful
overcharge collected unless overcome by the owner's submission of
evidence to rebut willfulness.
In his response to the final notice, the owner stated that 1)
the tenant and her spouse had vacated and sublet the subject
HJ410221RO
premises without the owner's permission; 2) HPD had issued a
violation against the owner because more than one adult was residing
in the apartment; 3) the final order ignored all improvements and
guidelines in establishing the legal rent; 4) the final order
fails to acknowledge the owner's purpose in purchasing the property
as residence for his family.
In the order issued on June 30, 1993, the Rent Administrator
established the legal stabilization rent at $500.00 as of March
1,1992 and determined that the owner had collected an overcharge of
$3,885.00 inclusive of treble damages from September 1, 1989 through
August 31,1991.
In this appeal, the owner reiterates the statements made in
response to the final notice.
In answer to the appeal, the tenant contends that 1) the
petition should be dismissed as untimely since it was not received
within 35 days of the issuance of the Rent Administrator's order;
2) the courts have concluded that the owner has not complied with
the Rent Stabilization Law; 3) the owner has committed acts of
fraud and violence against the tenant.
In reply, the owner states that his appeal should be accepted
as timely because it was timely mailed from Mexico City. Mail
delays probably caused its untimely arrival in New York; 2) the
tenant abandoned the premises and illegally sublet the unit to one
who also left the premises; 3) the courts have not established the
legal rent; 4) the owner has not committed any acts of violence
against the tenant.
The Commissioner is of the opinion that this appeal should be
denied.
This petition is accepted as timely because the postmark
indicates that pursuant to Code Section 2529.2, it was put into the
mail within 35 days of the issuance of the order appealed.
The complainant's rights as a rent stabilized tenant cannot be
compromised and were established by Order No. ZFH410073RV granted on
October 9, 1992.
With respect to the establishment of the legal stabilization
rent, the evidence of record indicates that from the applicable
base date until the tenant's occupancy, the subject apartment had
been owner-occupied. Consequently, the first rent charged and paid
by the tenant on August 15, 1988, $500.00, is the initial legal
stabilized rent. Orders BI410052OM and CA301138OM became effective
before the complainant's occupancy and thus the rent increases
granted therein are incorporated in the initial legal stabilized
rent.
The Commissioner finds that any permissible rent increase for
individual apartment improvements pursuant to Code Section
2522.4(a)(1), having been made before the commencement of the
complainant's occupancy, is similarly incorporated in the initial
rent.
HJ410221RO
The Commissioner has carefully considered the remainder of
the owner's contentions and finds that they are not relevant to the
initial legal rent or to the Rent Administrator's determination that
an overcharge was collected.
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.
A copy of this order is being semt to the tenant on occupancy.
The Commissioner has determined in this Order and Opinion that
the owner collected overcharges of $$3,885.00. 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. Where the tenant
files this Order as a judgment, the County Clerk may add to the
overcharge, interest at the rate payable on ajudgment pursuant to
section 5004 of the Civil Practice Law and Rules from the issuance
date of th 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
HJ410221RO
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