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.:AL 1103110-RO
                                          :  
          PIKI ASSOCIATES                    RENT ADMINISTRATOR'S
                                             DOCKET NO.:Q 3120956-R
                            PETITIONER    : 
      ------------------------------------X                             

        ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW IN PART

      On December 9, 1986, the above-named petitioner-owner filed a Petition for 
      Administrative Review against an order issued on November 5, 1986, by a 
      Rent Administrator, concerning the housing accommodations known as 33-75 
      76th Street, Jackson Heights, New York, Apartment No. 6C, wherein the Rent 
      Administrator determined that the owner had overcharged the tenant.

      Subsequent thereto, the petitioner owner filed a petition in the Supreme 
      Court pursuant to Article 78 of the Civil Practice Law and Rules requesting 
      that the "deemed denial" of the petitioner's administrative appeal be 
      annulled.  The proceeding was then remitted to the DHCR for a determination 
      of the petitioner's appeal.

      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 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 March 28, 1984 of 
      a rent overcharge complaint by the tenant who stated in substance tht the 
      owner had not provided him with a lease history the tenant had assumed 
      occupancy on April 30, 1975 pursuant to a 3 year lease at a rent of $235.00 
      per month.  The owner was served with the complaint, but did not respond.

      In Order Number Q 3120956-R, the Rent Administrator determined that, due to 
      the owner's failure to submit a complete rental history, the tenant had 
      been overcharged in the amount of $5,888.90, including treble damages, and 
      directed the owner to refund such overcharge to the tenant as well as to 
      reduce the rent.

      The Commissioner is of the opinion that this petition should be granted.

      Section 42A of the former Rent Stabilization Code requires that an owner 
      retain complete records for stabilized apartment in effect from June 30, 
      1974 (or the date the apartment became subject to rent stabilization, if 
      later) and to produce such records to the DHCR upon demand.








          DOCKET NUMBER: AL 110310-RO
      Section 26-516 of the former Rent Stabilization Code requires that an owner 
      retain complete records for each stabilized apartment in effect from June 
      30, 1974 (or the date the apartment became subject to rent stabilization, 
      if later) and to produce such records to the DHCR upon demand.

      It has been the DHCR's policy that overcharge complaints filed prior to 
      April 1, 1984, are to be processed pursuant to the Law or Code in effect on 
      March 31, 1984.  (See Section 2526.1(a)(4) of the current Rent 
      Stabilization Code.)  The DHCR has therefore applied Section 42A of the 
      former Code to overcharge complaints filed prior to April 1, 1984, 
      requiring complete rent records in these cases.  In following this policy, 
      the DHCR has sought to be consistent with the legislative intent of the 
      Omnibus Housing Act (Chapter 403, Laws of 1983), as implemented by the New 
      York City Conciliation and Appeals Board (CAB) the predecessor agency to 
      the DHCR, to determine rent overcharge complaints filed with the CAB prior 
      to April 1, 1984, by applying the law in effect at the time such complaints 
      were filed so as not to deprive such tenants of their rights to have the 
      lawful stabilized rent determined from the June 30, 1974 base date and so 
      as not to deprive tenants whose overcharge claims accrued more than four 
      years prior to April 1, 1984 of the right to recover such overcharges.  In 
      such cases, if the owner failed to produce the required rent records, the 
      lawful stabilized rent would be determined pursuant to the default 
      procedure approved by the Court of Appeals in 61 Jane Street Associates v. 
      CAB, 65 N.Y.2d 898, 493 N.Y.S. 2d 455 (1985).

      However, it has recently been held in the case of J.R.D. Mgmt. v. Eimicke, 
      148 A.D.2d 610. 539 N.Y.S. 2d 667 (App. Div. 2d Dept. 1989). motion for 
      leave to reargue or for leave to appeal to the Court of Appeals denied 
      (App. Div. 2d Dept., N.Y.L.J., June 28, 1989. p.25, col.1), motion for 
      leave to appeal to the Court of Appeals denied (Court of Appeals, N.Y.L.J., 
      Nov. 24, 1989, p. 24, col.4)., motion for leave to reargue denied (Court of 
      Appeals, N.Y.L.J., Feb 15, 1990, p.25, col. 1), that the Law in effect at 
      the time of the determination of the administrative complaint rather than 
      the Law in effect at the time of the filing of the complaint must be 
      applied and that the DHCR could not require an owner to produce more than 
      four years of rent records.

      Since the issuance of the decision in JRD, the Appellate Division, First 
      Department, in the case of Lavanant v. DHCR, 148 A.D.2d 185, 544 N.Y.S.2d 
      331 (App. Div. 1st Dept. 1989), has issued a decision in direct conflict 
      with the holding in JRD.  The Lavanant court expressly rejected the JRD 
      ruling finding that the DHCR may properly require an owner to submit 
      complete rent records, rather than records for just four years, and that 
      such requirement is both rational and supported by the Law and legislative 
      history of the Omnibus Housing Act.

      Since in the instant case the subject dwelling unit is located in the 
      Second Department, the DHCR is constrained to follow the JRD decision in 
      determining the tenant's overcharge complaint, limiting the requirement for 
      rent records to April 1, 1980.  An examination of the rent records from 
      April 1, 1980 discloses that no rent overcharge occurred.  Therefore, the 
      Rent Administrator's order fining a rent overcharge must be revoked.






          DOCKET NUMBER: AL 110310-RO
      If the owner has already complied with the Rent Administrator's order and 
      there are arrears due to the owner as a result of the instant 
      determination, the tenant is permitted to pay off the arrears in 24 equal 
      monthly installments.  Should the tenant vacate after the issuance of this 
      order or have already vacated, said arrears shall be payable immediately.

      THEREFORE, in accordance with the Appellate Division ruling in JRD, it 

      ORDERED, that this petition for administrative review be, and the same 
      hereby is, granted that the order of the Rent Administrator be, and the 
      same hereby is, revoked, and it is found that no rent overcharge occurred.

      ISSUED:







                                                                    
                                           JOSEPH A. D'AGOSTA
                                       Acting Deputy Commissioner




                                                    





    

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