STATE OF NEW YORK
                          OFFICE OF RENT ADMINISTRATION
                                   GERTZ PLAZA
                             92-31 UNION HALL STREET
                             JAMAICA, NEW YORK 11433

      APPEAL OF                              DOCKET NO. ARL12628K

                                          :  DISTRICT RENT OFFICE
           Morris Rokowsky,                  DOCKET NO. K3104068R
                                             TENANT: Rhoda Kaye               
                            PETITIONER    : 


      On August 18, 1986, the above-named petitioner-owner filed a Petition 
      for Administrative Review against an order issued on August 11, 1986, by 
      the Rent Administrator concerning the housing accommodations known as  
      1401 Ocean Avenue, Brooklyn, New York, Apartment No. 3H, wherein the 
      Administrator determined that the tenant had been overcharged.

      The issue under appeal is whether the Administrator's order was 

      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 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, and this proceeding is being determined in accordance 

      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 originally commenced by the filing of a rent 
      overcharge complaint by the tenant on March 31, 1984.  The tenant took 
      occupancy on May 1, 1980 pursuant to a lease commencing May 1, 1980 and 
      terminating April 30, 1983.  

      The owner was served with a copy of the complaint and was requested to 


      submit rent records to prove the lawfulness of the rent being charged.  

      In answer to the complaint, the owner provided the rental history and 
      copies of all requested leases for the subject apartment.

      In Order Number CDR 21,034, the Rent Administrator determined that the 
      owner had collected an overcharge from the tenant totalling $2,492.52 
      including excess security, through April 30, 1986.  The owner was 
      directed to roll back the rent to the lawful stabilized amount and to 
      make full refunds to the tenant of all overcharges, plus interest on all 
      overcharges collected on or after April 1, 1984. 

      In his petition, the owner submits his own calculations in a rental 
      history chart, plus Guidelines and vacancy increases (where applicable) 
      for each lease period.  The calculations therein result in no 

      The tenant did not respond to this petition.

      The Commissioner is of the opinion that this petition should be granted 
      and the Administrator's order finding an overcharge should be revoked.

      Section 2522.5(f) of the current Rent Stabilization Code states, in 
      pertinent part:

      Where the tenant vacates prior to the expiration of the term of the 
      lease, and the housing accommodation is rented to a new tenant pursuant 
      to a lease commencing during the same guidelines period as the prior 
      lease, the rental provided in the new lease shall: (1) be in accordance 
      with and at the guidelines rate of rent adjustment applicable to the new 
      lease; and (2) shall be computed upon the legal regulated rent charged 
      and paid on the last day of the immediately preceding guidelines year: 
      and (3) may include such other rent increases as are authorized pursuant 
      to Section 2522.4 of this part.

      The Commissioner find that the owner's calculations are incorrect, 
      insofar as the rule stated above was not taken into account.  Both the 
      renewal lease for the prior tenant (Dublin) commencing March 1, 1980 and 
      the complainant's vacancy lease commencing May 1, 1980 began during 
      Guideline 11.  Therefore the lawful rent for the May 1, 1980 lease must 
      be based on the lawful June 30, 1979 rent.  The Commissioner finds the 
      lawful June 30, 1979 rent to be $337.00 (not $387.55 as stated by the 
      owner).  This includes a 3.5% electrical inclusion allowance omitted by 
      the Administrator.  The owner's calculations also fail to include the 
      $8.00 fuel surcharge which the tenant indicated she was charged until 
      the end of her initial lease.

      The lawful stabilized rent is recalculated on the attached rental 
      history chart which is hereby made a part of this order.  As indicated 


      on the attached chart, the tenant was not overcharged.

      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 shall be permitted to pay off the arrears in 
      twenty four 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 Rent Stabilization Law and Code, it is

      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 


                                      JOSEPH A. D'AGOSTA
                                      Deputy Commissioner


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