DHCR Decisions
DOC. NO.: EB 910299-RO
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. EB 910299-RO
BLUEBERRY HILL DISTRICT RENT ADMINISTRATOR'S
MANAGEMENT CORP., : DOCKET NO. SDH-9-1-0180/R
PETITIONER : TENANT: FRANCINE RIVLIN
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
The above-named owner has filed a petition for administrative review
of an order issued on January 25, 1990 by a District Rent
Administrator concerning the housing accommodation known as apartment
No. 147, 147 Kearsing Parkway, Monsey, New York.
The Commissioner has reviewed all of the evidence in the record and
has carefully considered that portion of the record relevant to the
issues raised by the administrative appeal.
This proceeding was commenced by the filing of an overcharge complaint
by the tenant, dated August 4, 1989, alleging that she was being
overcharged due to the owner's failure to file a 1988 apartment
registration.
The tenant took occupancy pursuant to a two-year lease commencing on
August 1, 1980 and expiring on July 31, 1982 at a monthly rent of
$455.00.
On October 18, 1989 the District Rent Administrator mailed to the
owner a copy of the tenant's complaint, and a notice requesting an
answer, within twenty days. The notice directed the owner to submit
a copy of the complainant's present and prior leases, and the lease of
the comparable apartment on which the vacancy factor was determined.
The owner did not reply.
On December 19, 1989 the District Rent Administrator mailed to the
owner a "Notice of Pending Default" requesting that the owner submit
a copy of the 1988 apartment registration for the subject apartment,
within twenty days. The notice warned the owner that if it failed to
comply with the Division of Housing and Community Renewal's
(D.H.C.R.'s) request for leases, and for the apartment registration,
that the lawful legal regulated rent would be established by
D.H.C.R.'s default procedure.
DOC. NO.: EB 910299-RO
On January 9, 1990 the owner submitted its answer. It stated that the
owner did send the 1988 apartment registration to the tenant, but that
its file was lost and therefore it could not produce the 1988
registration. Furthermore, the owner argued that since the overcharge
complaint was instituted in 1989 concerning the 1988 apartment
registration the Administrator should have dismissed the complaint
upon the equitable doctrine of laches.
In the order reviewed herein, the Administrator found that according
to the rent agency's record the owner failed to register the subject
apartment for 1988. The Administrator determined that pursuant to the
applicable code, where the owner fails to file an annual apartment
registration the owner is barred from collecting any rent in excess of
the legal regulated rent in effect on the date of the last preceding
registration.
Accordingly, the Administrator established the legal regulated rent,
beginning on April 1, 1988, at $484.57 per month, which was the rent
charged prior to the lease which commenced on September 21, 1987.
Furthermore, the Administrator computed total overcharges in the
amount of $588.82 including accrued interest.
In this petition the owner reiterates its assertions stated in its
answer which was submitted to the Administrator.
The Commissioner is of the opinion that this petition should be
denied.
As to the owner's assertion that the tenant's complaint should have
been dismissed for laches, section 2506.1(a)(2) of the Tenant
Protection Regulations states:
A complaint pursuant to this section must be
filed with the Division within four years of the
first overcharge alleged, and no award of the
amount of an overcharge may be based upon an
overcharge having occurred more than four years
before the complaint is filed....
Accordingly, the tenant's complaint was commenced timely, and it was
proper for the Administrator to have decided the tenant's overcharge
complaint.
As the owner failed to substantiate its allegation that it did send
DOC. NO.: EB 910299-RO
the 1988 apartment registration to the tenant, and as the agency's
records showed that it failed to file a 1988 registration with the
agency, the Commissioner finds that the owner failed properly to
register the subject apartment for 1988. Since the owner failed to
file and serve the 1988 apartment registration, the District Rent
Administrator's order directing that the subject apartment's rent
remain at $484.57 per month until the owner files it with the agency
and serves the tenant a copy of the required apartment registration
was correct.
THEREFORE, in accordance with the Emergency Tenant Protection Act of
1974, and the State Tenant Protection Regulations, it is
ORDERED, that this petition be, and the same hereby is, denied, and
that the Rent Administrator's order be, and the same hereby is,
affirmed; and it is
FURTHER ORDERED, that the owner, Blueberry Hill Management
Corporation, shall immediately refund to the tenant all amounts not
yet refunded representing overcharges and interest; and it is
FURTHER ORDERED, that if the owner, Blueberry Hill Management
Corporation, has not refunded the stated amounts as of the expiration
of the time for commencing a proceeding under Article 78 of the Civil
Practice Law and Rules for judicial review of this order, the tenant
may recover such amounts by deducting them from the rent due to the
owner at a rate not in excess of twenty percent of the amount to be
refunded for any one month's rent. If, after such period, the owner
has refunded no such amounts and the tenant has not made any such
deductions from her rent as an offset, then the tenant may file and
enforce a certified copy of this order as a judgment for the amount of
$588.82 against Blueberry Hill Management Corp.
ISSUED:
ELLIOT SANDER
Deputy Commissioner
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