3505 Broadway Realty Corp. v. New York State Division of Housing & Community Renewal

In October 1983, tenant Luis Ruiz leased a rent-stabilized apartment, 5F, in a building located at 600 West 140th Street for $350 per month. After several months, the landlord informed the tenant that he would have to sign a new lease *348requiring him to pay $406.07 per month. After the tenant complied, he filed a complaint of rent overcharge with respondent DHCR in July 1984. During the investigatory stage of the proceeding, in which the agency was seeking discovery of rent rolls going back to April 1, 1980, petitioner acquired said building and asserted that such records were not available, and that to the best of its knowledge the appropriate rent was $406.07. Petitioner also maintained it was not required to produce rent records going back to April 1980. The tenant, however, produced documentary proof of having made payments of $350 for the period of October 1983 to February 1984. Consequently, the agency undertook to calculate the lawful stabilization rent according to its regulation and guidelines. Lawful rent was set at $311.22 after a study of similar apartments revealed the average rent to be $298.98.

Both petitioner and respondent agree that the District Rent Administrator, in its calculations, erroneously substituted an average rent of $288.27, to which a 7% guideline increase and a 15% vacancy increase were applied to establish the lawful rent as of October 1983.

Accordingly, we remand the matter to the agency for the sole purpose of recalculating the lawful stabilization rent based upon the $298.98 average rent noted in the agency’s report.

We have examined petitioner’s other contentions on appeal and find them to be without merit. (See, Matter of Lavanant v State Div. of Hous. & Community Renewal, 148 AD2d 185 [1st Dept 1989]; Matter of 61 Jane St. Assocs. v New York City Conciliation & Appeals Bd., 108 AD2d 636 [1st Dept 1985], affd 65 NY2d 898.) Concur—Rosenberger, J. P., Asch, Ellerin and Wallach, JJ.