ARL 06746 K

                                  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  SJR No. 2707
          IN THE MATTER OF THE ADMINISTRATIVE :  ADMINISTRATIVE REVIEW
          APPEAL OF                              DOCKET NO. ARL 06746 K

                                              :  DISTRICT RENT OFFICE
               Arthur Wiener/Sherry Realty,      DOCKET NO. K 3106967 R
                                                 
                                                 TENANT: Volko Zitser        
                       

                                PETITIONER    : 
          ------------------------------------X                             

            ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW


          This order and opinion is issued after an Order of the Supreme 
          Court, Kings County, Justice Jerome Cohen, dated April 28, 1988, 
          which ordered a remand of an Article 78 proceeding directing the 
          Division to reconsider its former Order and Opinion issued on 
          August 31, 1987 upon which the Court proceeding was based.

          On November 18, 1985, the above-named petitioner-owner filed a 
          Petition for Administrative Review against an order issued on      
          November 6, 1985, by the Rent Administrator, 2 World Trade Center, 
          New York, New York, concerning the housing accommodations known as  
          260 Ocean Parkway, Brooklyn, New York, Apartment No. 6K, wherein 
          the Administrator determined that the owner had overcharged the 
          tenant.

          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.  

          The issue herein is whether the Rent Administrator's order was 
          warranted.

          This proceeding was originally commenced by the filing on March 8, 
          1984 of a rent overcharge complaint by the tenant.

          In answer to the complaint, the owner stated in substance that the 
          complaint should be dismissed as untimely since the tenant had been 
          served with a DC-2 form on August 14, 1982.  A copy of said form 
          which was submitted by the owner along with proof of service on the 
          tenant indicated that the subject apartment had been vacancy 
          decontrolled in August 1974.  In the Article 78 proceeding and in 












          ARL 06746 K

          a supplementary answer, the owner stated that the Division's 
          records would confirm that the subject apartment had been subject 
          to rent control until the previous tenant (R. Padob) vacated.  The 
          owner submitted a copy of the apartment's rent control registration 
          card which indicates that the apartment continued to be subject to 
          rent control in March 1980.  The owner submitted also a copy of the 
          rent ledger for 1980 which shows that the previous rent controlled 
          tenant paid rent through May 1980 and that the complainant first 
          paid rent in June 1980.

          In Order Number K 3106967 R, the Administrator determined that due 
          to the owner's failure to submit a complete rental history, the 
          tenant had been overcharged in the amount of $8,674.19 inclusive of 
          excess security and treble damages on the overcharge occurring on 
          and after April 1, 1984 and directed the owner to refund such 
          overcharge to the tenant as well as to reduce the rent.  

          In this petition, the owner contends that the Administrator erred 
          in applying section 42A procedures as he had not defaulted,  The 
          owner asserts that the complainant was the first rent stabilized 
          tenant after vacancy decontrol, a fact confirmable by the 
          Division's own records, that there was no overcharge, and that the 
          order should be reversed. 

          In response, the tenant asserts that the previous tenant (Padob) 
          who resided in the subject apartment for over fifteen years paid a 
          lower rent than asserted by the owner and that the Administrator's 
          order should be confirmed.

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

          A review of the record, including the Division's rent control 
          records for the subject apartment, discloses that the apartment was 
          rent controlled at least through March 1980.  The Commissioner 
          notes that the owner did not file a report of statutory decontrol 
          (which would have specified the date of decontrol) when the rent 
          controlled tenant vacated and that the DC-2 form served on the 
          tenant contained an erroneous decontrol date.  However, an 
          extrapolation of the total evidence, the rent control records, the 
          1980 rent ledger, the tenant's confirmation of the prior tenant's 
          name, establishes that the apartment was vacancy decontrolled some 
          time during May 1980.   If the complaint were to be considered as 
          a fair market rent appeal, it would be found that the rent 
          collected does not exceed the fair market rent for the subject 
          apartment in that the 1978-79 maximum base rent(MBR) for the 
          subject apartment was $319.74 and pursuant to special guidelines 11 
          in effect when the tenant first occupied the subject apartment in 
          June 1980, the owner was entitled to charge a fair market rent of 
          $383.69 - 20% above $319.74(1978-79 MBR).  Since the tenant was 
          initially charged $375.00, a fair market rent appeal would be 
          dismissed.  Further, the record shows that the tenant was not 






          ARL 06746 K

          overcharged during the period from June 1, 1980 through October 31, 
          1985 encompossed by the Rent Administrator's order since the owner 
          took only lawful guideline increase during this period.

          If the owner has already complied ith the Administrator's order and 
          there are arrears due to the owner as a result of this 
          determination, the owner is directed to allow the tenant to pay off 
          the arrears in twenty four equal Monthly installments.  Should the 
          tenant vacate after the issuance of this order, or have previously 
          vacated, said arrears shall be payable immediately.

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

          ORDERED, that this petition be, and the same hereby is, granted 
          and, that the Rent Administrator's order be, and the same hereby 
          is, revoked.



          ISSUED:



                                                                        
                                          JOSEPH A. D'AGOSTA
                                          Acting Deputy Commissioner




                     
































          ARL 06746 K















    

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