ARL 11626-L
                                
                        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
                                
                                
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IN THE MATTER OF THE ADMINISTRATIVE     ADMINISTRATIVE REVIEW
APPEAL OF                               DOCKET NOS.:
                                        ARL 11626-L;
          NICK BRUSCO,
                                        DRO DOCKET NOS.:
                                        L 3112108-R
                        PETITIONER      TENANT: SAMANTHA FINCH
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  ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
               AND MODIFYING ADMINISTRATOR'S ORDER
                                
                                
On July 9, 1986 the above-named petitioner-owner filed a Petition
for  Administrative Review against an order issued  on  June  10,
1986 by the Rent Administrator, 10 Columbus Circle,
New  York, New York, concerning housing accommodations  known  as
Apartment A 115 West 74th Street, New York, New York, wherein the
Administrator established the legal regulated rent and
directed the refund of rent overcharges.

The  Commissioner notes that this proceeding was filed  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
over-charge  and  fair  market  rent  proceedings  provide   that
determina-tion  of these matters be based upon the  law  or  code
provisions  in  effect  on  March 31,  1984.   Therefore,  unless
otherwise   indi-cated,  reference  to  sections  of   the   Rent
Stabilization  Code (Code) contained herein are to  the  Code  in
effect on April 30, 1987.

The  issue  herein  is  whether the Rent Administrator  correctly
determined the legal stabilized rent of the subject apartment.

The  instant  proceeding stems from a complaint of specific  rent
overcharge  wherein the tenant contends, in substance,  that  her
paid  tenancy of the apartment commenced in September  1983;  and
that the owner was not entitled to a vacancy allowance under Rent
Order  Guideline  No. 15 (applicable to new tenancies  commencing
October  1,  1983).   The tenant submitted various  documentation
including  copies of utility and moving bills, showing  that  she
took occupancy of the subject apartment prior to October 1, 1983.

A  copy  of the complaint was sent to the owner on September  20,
1984.  In response thereto the owner stated that he had no record
of  the  tenant  having taken occupancy of the subject  apartment
prior  to  the October 1, 1983 commencement date of the  tenant's
lease;  and  that the tenant was actually undercharged.  Included
with  the answer was a rental history and various leases for  the
subject apartment including the lease executed by the complaining
tenant on September 9, 1983.

The  Commissioner notes that during the pendency of  the  instant
proceeding (L-311,2108-R) the tenant filed a second complaint  of
rent  overcharge (assigned Docket No. L-005164-R).   In  response
thereto  the owner stated that he did not receive any  rent  from
the  complaining tenant prior to October 1, 1983;  and  that  the
tenant's check, made payable to cash for $311.00 and marked  "1/2
mo.   Sept.  rent" was never given to him.  Said answer  was  not
made part of the instant proceeding.

Finding the owner's initial answer unresponsive to the complaint,
the  Rent  Administrator,  on June 10,  1986,  issued  the  order
appealed herein determining, in essence, that the owner  was  not
entitled  to a vacancy allowance under Guideline No.  15,  estab-
lishing  the  legal regulated rent commencing September  1,  1983
under  Guideline No. 14, and directing the refund of  rent  over-
charges and totaling $2,574.86, including interest for the period
since April 1, 1984.

(The Commissioner notes that on June 3, 1987 the proceeding under
Docket  No. L-005164-R was terminated on grounds that  the  issue
raised  by  the tenant's complaint was resolved by  the  Adminis-
trator's June 10, 1986 order appealed herein.)

In this Petition for Administrative Review the owner contends, in
substance,  that his answer was responsive to the  tenant's  com-
plaint; that the tenant has not submitted proof she actually paid
"rent"  during September 1983; that the tenant took advantage  of
his  largess when she was permitted to prepare for her  occupancy
of  the apartment which was to commence October 1, 1983; that the
tenant  "created a record tenancy" prior to October  1,  1983  in
order  to avoid paying a 15% vacancy allowance, effective  as  of
said  date; that while the tenant cashed a check for one-half  of
the  monthly rental, no proof has been submitted that this  money
was  accepted  by  the petitioner/owner; that  without  proof  of
payment  of rent and its acceptance by the petitioner the  tenant
may  not claim the existence of a "deemed lease"; and that  since
the  tenant had no lease prior to October 1, 1983, Rent Guideline
Order No. 15, applicable to leases commencing between October  1,
1983 and September 30, 1984 should govern the situation.

In  answer to the petition the tenant refers to the documentation
previously submitted and states, among other things, that her

check for September rent was returned by Joe Brusco who requested
payment  in  cash  as the owner sought to avoid  a  problem  with
another individual who had been promised the apartment; and  that
she  knew this story to be true because she received a note (copy
submitted)  from  this individual requesting to arrange  for  the
removal  of his belongings from the apartment.  In addition,  the
tenant  requested the imposition of treble damages and attorney's
fees.

A  hearing  was  held on April 4, 1991.  The tenant  appeared  in
person and by counsel.  The owner appeared solely by counsel. Two
witnesses appeared for the tenant.

The  tenant testified, in substance, that she first saw the  sub-
ject  apartment on September 2, 1983 at which time she  deposited
$610.00 by personnel check with the rental agent who informed her
that  the  existing  tenant  demanded $7,000.00  "key  money"  to
vacate;  and  that  the  agent (Gallagher)  destroyed  her  check
(#1406)  when  she  gave him the "key money", borrowed  from  her
friend (Jillein Leider), on September 6, 1983.  That on September
9,  1983,  at  Gem Realty, Joe Brusco presented a lease,  already
signed  by Nick Brusco to commence October 1, 1983; that she  was
never told she could live rent free during September 1983 and she
paid rent since the beginning of her occupancy; that on September
9,  1983  she initially wrote one check in the amount of  $933.00
for Joe Brusco (No. 1415) to cover security ($622.00) and partial
September  rent ($311.00); that Joe Brusco changed his  mind  and
requested  two separate checks; that she "reluctantly"  destroyed
check No. 1415 and wrote check No. 1416 for security and No. 1417
for partial September rent; and that Joe Brusco gave her the keys
to the subject apartment on September 9, 1983.

The tenant further testified that she was thereafter contacted by
Joe  Brusco  who requested she take back her check No.  1417  and
give  him cash in lieu thereof; that Joe Brusco informed her  the
subject apartment was originally promised to someone else and  he
did  not  want a record of her tenancy via check No. 1417,  which
said  individual  could  use against the  owner;  that  she  gave
credence to this explanation because she had been contacted by  a
Neil  Feldman  as the person slated to get the subject  apartment
through  a  "misunderstanding with the landlord", and  that  said
individual  wanted to make arrangements to remove his  belongings
previously  stored there as evidenced by a note from  said  indi-
vidual (Exhibit T-5).

The  tenant  further testified that she and  Joe  Brusco  met  on
September  21,  1983 at which time she gave him $311.00  in  cash
which she had earlier withdrawn from the bank by check (No. 1432)
written for cash (Exhibit T-4) and Joe Brusco returned to
her check No. 1417, which check was destroyed; and that on that

day  Joe Brusco removed all of Neil Feldman's belongings,  except
for  a  sofa  which she still has, so that said individual  could
retrieve them from the landlord's office at his leisure.

Submitted by the tenant were various invoices, bills and  utility
statements,  checks, check register and "week at a glance"  diary
(Exhibit T-16) to buttress her contention that she took occupancy
of  the subject apartment and paid rent therefor during September
1983.   On  cross examination the tenant conceded that the  lease
presented  on September 9, 1983 provided for an October  1,  1983
commencement  date;  and that other than his  possession  of  the
lease  she  did not see other documentation indicating  that  Joe
Brusco  was  empowered to act for Neil Brusco,  the  petitioner/-
/owner.

On  redirect  examination the tenant testified  that  Joe  Brusco
works  in  the landlord's office located in the subject premises;
and  that  she has had contact with Joe Brusco on many  occasions
both  prior  to  renting and afterwards with  regard  to  service
complaints.  In response to questioning by the Administrative Law
Judge,  the  tenant stated that Joe Brusco is  the  son  of  Nick
Brusco  to whom all rent checks have been made payable  from  the
inception of her tenancy.

Appearing on behalf of the tenant were two witnesses one of whom,
Leida  Davis  Cothbertson, testified that she helped  her  friend
move  into the subject apartment on September 18, 1983; and  that
as  the result of conversation with the tenant she was aware  her
friend paid $7,000.00 "key money" to obtain the apartment  and  a
partial  rent payment for September 1983.  Upon cross examination
she stated that such conversation took place between September  9
and September 18, 1983.

Jillian Leider testified that she lent the tenant $7,000.00  "key
money" so her friend could obtain the subject apartment; that she
was told by the tenant that the landlord was requesting some rent
in  cash;  and  that  she  first saw  the  subject  apartment  on
September 11, 1983.

The  Law  Judge, in his report found the testimony of the  tenant
and  her  witnesses  to be credible and supported  by  meticulous
documentation, particularly in view of the failure of Neil Brusco
or  Joe Brusco to appear in person on their own behalf; that  the
record  was  replete with unrebutted testimony  that  Joe  Brusco
acted as and was the agent for his father Nick Brusco through the
period  in  question; that Joe Brusco was an  owner  pursuant  to
Section  2520.6(i)  of the Code; and that Samantha  Finch's  paid
tenancy of the subject apartment began on
September  9,  1983, the date she paid rent and security  to  Joe
Brusco and he gave her the keys to the apartment.

After  a  careful consideration of the entire record, the Commis-
sioner is of the opinion that this petition should be denied.

Rent  Guideline  Order No. 15 provides for up to  a  15%  vacancy
allowance  for  new tenancies during the period from  October  1,
1983  to  September 30, 1984.  No vacancy allowance is  permitted
under Guideline Order No. 14 (covering the period October 1, 1982
- September 30, 1983).  In view of the conflicting allegations of
the  parties with respect to the payment and receipt of rent  for
the  month  of  September 1983, this matter was referred  to  the
Hearings  Section to determine "whether the tenancy  of  Samantha
Finch  commenced prior to October 1, 1983."  Both the  owner  and
the tenant were specifically requested to appear in person and to
produce   witnesses  and  documentation  in  support   of   their
respective positions.

The  Law Judge, who heard the unrebutted testimony of the  tenant
and  the  witnesses who appeared on her behalf and  who  observed
their demeanor, is best qualified to make a judgement as to their
credibility.   The  testimony given and the documentary  evidence
submitted supports the tenant's contention that her paid  tenancy
of  the subject apartment commenced on September 9, 1983 when the
tenant  paid and the owner accepted one-half months rent for  the
month   of  September.   The  record  indicates  that  the  legal
regulated  rent for the prior tenant was $514.48 per month;  that
the  Administrator properly reformed the current tenant's initial
lease  and  applied Guideline Order No. 14 (applicable to  leases
commencing  prior  to  October 1, 1983) and increased  the  legal
regulated  rent  to  $550.49 per month as of September  1983  and
further increased same to $568.27 per month under Guideline Order
No.  17, as of October 1, 1985.  However, as the tenant only paid
one-half  months  rent ($311.00) for September  1983,  the  total
overcharge is hereby reduced by $35.76 to $2,539.10, and that  as
so modified said order is hereby affirmed.

Concerning the tenant's claim that the Administrator should  have
awarded  treble damages, the Commissioner finds that  the  tenant
may  not  raise this issue by means of her answer to the  owner's
petition.  In addition, legal fees may be awarded only when  they
are  requested  and  established as part  of  the  Administrative
proceeding.  The case cited by the tenant at the hearing,  Sakraf
v.  Emicke, Sup. Ct. April 11, 1988 in support of her request for
treble damages is distinguishable from the facts at hand in  that
the  Sakraf  case involved a fraudulent document, a lease  fabri-
cated  by the owner to obtain rent increases substantially  above
applicable  guideline orders whereas the tenant's  initial  lease
was  in all respects proper, and even provided for a rental  less
than  legally  permissible,  but for  the  fact  that  the  owner
accepted  payment of rent prior to the commencement of the  lease
term.


THEREFORE,  in  accordance  with  the  provisions  of  the   Rent
Stabilization Code, it is

ORDERED,  that this petition be, and the same hereby is,  denied;
that  the order of the Rent Administrator be, and the same hereby
is, modified as hereinabove indicated; and it is

FURTHER  ORDERED,   that the tenant may  file  this  order  as  a
judge-ment in the amount of $2,539.10 after the expiration of the
sixty  (60)  day  period in which an Article 78 petition  may  be
filed  or  not in excess of 20% thereof per month may  be  offset
against any rent thereafter due the current owner.


ISSUED:




ELLIOT SANDER
                                         Deputy Commissioner
    

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