AL410661RO
                             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.: AL410661RO

           Weinreb Management,               DRO DOCKET NO.: 047588G

                                             TENANT: Jonathan Dembrow
                                                                              
                               PETITIONER    
      ------------------------------------X                             


          ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
                                     IN PART


      On December 29, 1986, the above-named owner filed a petition for 
      administrative review of an order issued on December 2, 1986, by a 
      District Rent Administrator concerning the housing accommodations known 
      as 350 Central Park West, Apartment No. 11H, New York, New York wherein 
      the Administrator determined that the owner had overcharged the tenant.

      The Commissioner notes that this proceeding was filed prior to April 1, 
      1984.  Section 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 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 instituted by the filing of an overcharge complaint 
      with the New York City Conciliation and Appeals Board (CAB).
           
      On April 1, 1984, responsibility for the administration of rent  
      stabilization in New York City was transferred to the New York State 
      Division of Housing and Community Renewal (DHCR).

      In Order Number 27,595, the Rent Administrator determined that due to 
      the owner's failure to submit a complete rental history, the lawful 
      stabilization rent as of August 1, 1976 was $530.00 per month and that 
      the tenant had been overcharged $3,065.95 through July 31, 1979.

      On December 29, 1986, the owner filed a petition for administrative 
      review.


      Subsequently, the parties were advised that the DHCR was unable to 







          AL410661RO

      locate the Administrative Review file or the Rent Administrator's file 
      in this proceeding.  Both parties were requested to submit copies of all 
      papers connected with this proceeding in order to assist the agency's 
      reconstruction of the files.  Both parties replied to these requests and 
      both replies were forwarded to the opposing party.

      In its petition for administrative review, the owner alleged that the 
      last notice it received in this proceeding was a notice from the CAB 
      advising the owner that this overcharge proceeding had been given a 
      docket number.  The owner alleges that it received no further notice 
      and, as such, had not been afforded an opportunity to submit a rental 
      history.  Accordingly, the owner contends that the Commissioner is 
      required to accept and consider the rental history now submitted for the 
      first time with the administrative appeal.  In addition, the owner 
      asserts that he took ownership on January 2, 1979 from a prior owner 
      (Argo Corporation) and that the Administrator erred by not allocating 
      overcharges between the owners.  With his petition for administrative 
      review the owner submitted a rental history of the subject apartment 
      including leases from July 1, 1973 through August 31, 1987.

      In his answer, the tenant urges that the Administrator's findings be 
      affirmed.  However, the tenant requests, as well, that these findings be 
      updated beyond July 31, 1979 through the date of the Administrator's 
      order and that the penalty of treble damages be assessed on those 
      overcharges occurring after April 1, 1984.  Further, the tenant asserts 
      that the current owner should be held responsible for all overcharges 
      including those collected by a prior owner.  Also, the tenant asserts 
      that the owner's petition for administrative review should be rejected 
      because the owner had failed to forward its pleadings to the tenant.  
      Finally, the tenant requests attorney's fees and submits a bill for 
      attorney's fees with his answer.

      The Commissioner is of the opinion that this petition for administrative 
      review should be granted in part.

      The Commissioner finds that all of the pleadings and documents submitted 
      by the parties to assist the Commissioner in his efforts to reconstruct 
      the files must be fully considered in this order and opinion, including 
      the complete lease history for the subject apartment submitted for the 
      first time with the petition for administrative review.  The owner's 
      assertion that he received no notice in the proceeding below must be 
      granted because the record contains insufficient evidence to contradict 
      this assertion.  Accordingly, the Commissioner is constrained to accept 
      the owner's rental documentation for the first time at the 
      administrative appeal level.

      The lawful stabilization rent has been recalculated on the attached rent 
      calculation chart through the date of the issuance of the 
      Administrator's order based on the owner's rental documentation.

      Further, the Commissioner finds the owner's assertion that the total 
      overcharges must be allocated to be correct.  When an overcharge 
      complaint was filed before April 1, 1984 and the overcharges were 
      collected by a prior owner before April 1, 1984, each owner is liable 
      only for that portion of the overcharges actually collected.  As such, 
      in this case, the petitioner-owner is liable only for those overcharges 
      occurring after January 2, 1979.



          AL410661RO

      Further, the Commissioner will not grant the request for attorney's fees 
      made by the tenant in his answer to the petition for administrative 
      review.   The Commissioner is of the opinion that this additional 
      penalty is not warranted in this case.   

      Since the tenant did not file a petition for administrative review, the 
      commissioner will assess interest only and not treble damages on all 
      overcharges occurring after April 1, 1984.  In addition, the record 
      contains no indication that the owner was properly notified of the 
      possible assessment of treble damages. 

      The tenant, in his answer, asserted that the petition for administrative 
      review must be dismissed because the owner failed to furnish the tenant 
      with complete copies of the petition for administrative review.  The 
      Commissioner finds that this failure by the petitioner-owner does not 
      result in a incurable due process error.  Full copies of the petition 
      for administrative review have been forwarded to the tenant and his 
      attorney by the Commissioner, and they have been given a complete 
      opportunity to respond.  Accordingly, all of the tenant's due process 
      rights have been protected.

      Therefore, as shown on the attached calculation chart, the total 
      overcharges are $5,768.27.  However, the petitioner-owner is liable only 
      for those overcharges occurring since January 2, 1979, or $4,218.71.

      The Commissioner has determined in this Order and Opinion that the 
      owner, Weinreb Management, collected overcharges of $4,218.71.  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 or not in 
      excess of twenty percent per month of the overcharge may be offset 
      against any rent thereafter due the owner.  Where the tenant credits the 
      overcharge, the tenant may add to the overcharge, or where the tenant 
      files this Order as a judgment, the County Clerk may add to the 
      overcharge, interest at the rate of the Civil Practice Law and Rules 
      from the issuance date of the Rent Administrator's Order to the issuance 
      date of the Commissioner's order.

      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.
                
                                                             
      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.
      This order and opinion is issued without prejudice to the tenant's right 
      to proceed against any prior owner for that portion of the overcharges 
      for which said prior owner may be liable.

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








          AL410661RO


      ORDERED, that this petition for administrative review be, and the same 
      herby is, granted in part, and the Administrator's order be, and the 
      same hereby is, modified in accordance with this order and opinion.



      ISSUED: 


                                                                          
                                     JOSEPH A. D'AGOSTA 
                                     Deputy Commisioner
                                                                           
    

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