DOC. NOS.: AL 410030-RT, AL 410031-RT
                                   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 NOS. AL 410030-RT
                                                             AL 410031-RT
              THOMAS BAUMGARTNER             :   DISTRICT RENT ADMINISTRATOR'S
                   - and -                   :   DOCKET NO.: TC-062938-G
              ALEXIS GANTRY,     PETITIONERS :
         ------------------------------------X

              ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
                                 AND REMANDING PROCEEDING


         On December 5, 1986, the above-named petitioners each filed a Petition for 
         Administrative Review against an order issued on October 31, 1986 by the 
         Rent Administrator, 10 Columbus Circle, New York, New York concerning the 
         housing accommodation known as Apartment 1RW, 406 West 25th Street, New 
         York, New York wherein the Administrator determined that there had been an 
         overcharge and ordered a refund.

         The Commissioner notes that this proceeding was initiated prior to April 
         1, 1984.  Sections 2526.1(a) (4) and 2521.1(d) of the Rent Stabilization 
         Code (effective May 1, 1987) governing rent overcharge and fair market 
         rent proceedings provide that determination of these matters be based upon 
         the law or code provisions in effect on March 31, 1984.  Therefore, unless 
         otherwise indicated, reference to sections of the Rent Stabilization Code 
         (Code) contained herein are to the Code in effect on April 30, 1987.
          
         The Commissioner has reviewed all the evidence in the record and has 
         carefully considered that portion of the record relevant to the issues 
         raised by the administrative appeals.

         The former tenant, Angelo Rosado, commenced this proceeding on May 25, 
         1982 by filing an overcharge complaint with the New York City Conciliation 
         and Appeals Board (CAB), the predecessor of the DHCR, based in part on an 
         alleged failure by the owner to provide a complete rental history.

         The owner, Tint Realty Corporation, was served with a copy of the tenant's 
         complaint and was requested to submit complete copies of all leases or 
         rent records pursuant to Section 42A of the Code.  The owner was advised 
         that its failure to provide the requested information would be a default.


















          DOC. NOS.: AL 410030-RT, AL 410031-RT


         The owner failed to interpose an answer or provide a full rental history 
         for the subject apartment.

         In 1982, the CAB adopted procedure to be used to determine an apartment 
         rent where the owner did not provide a complete rent history of the 
         apartment.  In such cases, the rent is calculated to be the lowest of the 
         following amounts: 1) the lowest rent in the line; 2) the current tenant's 
         initial rent minus any allowance for the tenant's initial lease; 3) the 
         prior tenant's last rent.

         In Order Number 25,571, the Rent Administrator determined that the owner 
         was in default and applied Section 42A default procedures to establish the 
         lawful stabilization rent, using only method 2 as hereinabove mentioned.  
         Treble damages were imposed and a refund of $5,906.43, inclusive of treble 
         damages and excess security, was ordered.

         Although neither of the petitioners herein is a party in the proceeding 
         below, each claims the right to appeal as an aggrieved party.  Each of the 
         petitioners is or was a tenant of the subject accommodation, and each has 
         filed an overcharge complaint (Baumgartner under docket number AB410264R 
         and Gantry under docket number L004139R).  The tenants contend the final 
         ruling in this proceeding will be dispositive of the legal rent for the 
         subject accommodations and of findings of overcharges.

         In seeking modification of the Administrator's Order, the petitioners 
         contend there are inconsistencies between the determination at issue and 
         prior findings in similar overcharge complaints in the same building.  
         Questioning the formula used, the petitioners further contend that more 
         consistent results are obtained if the records of these prior cases are 
         consulted.

         The Commissioner notes that the owner (Tint Realty) received neither the 
         issued order nor the notice of filing of petition; each was returned to 
         the Division as undeliverable.  The 7A Administrator, Diane Dowling, did 
         not respond to the petition although afforded the opportunity to do so.

         The Commissioner is of the opinion that these petitions should be granted 
         to the extent of remanding this proceeding for further processing.

         Section 2529.1(a) provides in pertinent part that a petition for 
         administrative review (PAR) may be filed by a party to the proceeding, or 
         other necessary party where such petition alleges the errors upon which 
         the order is based.












          DOC. NOS.: AL 410030-RT, AL 410031-RT


         In the instant case, although the complainant has vacated the subject 
         premises, the ruling on the complaint will be determinative of the legal
         stabilization rent for the subject apartment.  These petitioners may be 
         adversely affected by any error in the ruling.  Therefore, the 
         Commissioner finds that the petitioners each has standing to file a PAR.

         Pursuant to the default procedures adopted by the CAB, the Administrator 
         should have calculated the apartment rent as the lowest of three amounts 
         cited above.  In the instant case, finding both the lowest rent in the 
         line and the prior tenant's rent not available and relying solely on 
         method 2, the Administrator established the complainant's legal rent as 
         $383.47 for the lease period May 1, 1982 through April 30, 1985.

         The petitioners submit with the appeal copies of orders, issued by either 
         the Division or its predecessor, the CAB, on three overcharge complaints 
         allegedly similar to the instant complaint.  The petitioners assert that 
         each of the concerned housing accommodations is identical to the subject 
         apartment.  In each instance, the Administrator established the legal 
         stabilized rent at a considerably lesser amount than was established in 
         the Order at issue.

         A review of the record reveals that these orders were issued before the 
         issuance of the Order in the instant proceeding and that a rent roll of 
         the stabilized apartments in the subject building was available in 
         Division Records.  Accordingly, the Commissioner finds, error in the 
         Administrator's reliance on only one of the three methods used in default 
         procedures and its failure to consider all available information to 
         establish the legal stabilized rent of the subject accommodation.

         THEREFORE, in accordance with the Rent Stabilization Law and Code, it is

         ORDERED, that this petition be and the same hereby is granted to the 
         extent of remanding this proceeding to the Rent Administrator for further 
         processing in accordance with this order and opinion.  The automatic stay 
         of so much of the Rent Administrator's order as directed a refund is 
         hereby continued until a new order is issued upon remand.  However, the 
         Administrator's determination as to the rent is not stayed and shall 
         remain in effect, except for any adjustments pursuant to lease renewals, 
         until the Administrator issues a new Order upon remand.

         ISSUED:


                                                                                  
                                                      ELLIOT SANDER
                                                      Deputy Commissioner








    

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