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

     APPEAL OF                              DOCKET NO.: ARL 13382-N
                           PETITIONER    : 


     On September 3, 1986 the above-named petitioner-landlord filed a  Petition
     for Administrator Review against an order issued on August  20,  1986,  by
     the district Rent Administrator, 50 Clinton Street, Hempstead,  New  York,
     concerning housing accommodations known as Apartment No. 2L at  380  Front
     Street, Hempstead, New  York,  wherein  the  District  Rent  Administrator
     determined that the tenant had been overcharged.

     The issue in this appeal is  whether  the  District  Rent  Administrator's
     order was warranted.

     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.

     This proceeding was originally commenced by the filing of  an  application
     by the tenant (Rebecca  Jenkins)  for  adjustment  of  the  initial  legal
     regulated rent ("fair market rent appeal").   The  tenant  took  occupancy
     pursuant to a lease commencing November 1,1981 and  expiring  October  31,
     1983 at a monthly rent of $425.00.

     The landlord was served with a copy of the complaint and was requested  to
     submit the prior tenant's lease.

     In answer, the owner asserted, among other things, that it  maintained  no
     leases prior to the complainant's.

     In an order issued on August 20, 1986,  the  District  Rent  Administrator
     determined the fair market rent of the subject apartment by comparing  the
     tenant's initial rent to the rent established for a  comparable  apartment
     in the building (apt 4L) in another case (HEMPTA 83-262).  Since the  rent
     established for the comparable apartment  exceeded  the  tenant's  initial
     rent, the  tenant's  initial  rent  was  accepted  as  the  initial  legal
     regulated rent.

     The Administrator further determined that the tenant  was  overcharged  on
     her renewal lease commencing November 1, 1983 in the amount of $329.52 and 
     directed the landlord to refund such amount to the tenant as  well  as  to
     reduce the rent.


     In  this  petition,  the  landlord  contends   in   substance   that   the
     Administrator's order is barred by the Civil Practice Law and  Rules  Sec.
     214(2); that the order violates State Administrative  Procedure  Act  Sec.
     307(2) because of being based not on evidence in the papers served on  the
     parties but on evidence which was  obtained  from  the  tenant  or  others
     without notice or an opportunity to be heard; that  the  order  should  be
     barred by laches because many rights have arisen in the  more  than  three
     years  between  the  filing  of  the  complaint  and  the  Administrator's
     determination; that the formula used to adjust the initial legal regulated 
     rent as being in excess of the fair market value (lowest adjusted rent  in
     the same line) constitutes a regulation required to be  filed  (but  which
     was not filed) under the State Administrative Procedure Act Sec. 203; that 
     the tenant's application did not present facts which to the  best  of  the
     tenant's information and belief supported the same, as required by  Tenant
     Protection  Regulations  Sec.  2502.3(a);  and  that  the  initial   legal
     regulated rent as adjusted failed to include an allowance  for  a  vacancy
     factor or guideline adjustment as in Docket Number HEMPTA 83-318.

     The tenant did not submit an answer to this petition.

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

     Civil Practice Law and Rules (CPLR) Section 101 provides that "[t]he civil 
     practice law  and  rules  shall  govern  the  procedure  in  all  judicial
     proceedings in all courts of the state and before all judges..." [emphasis 
     added].   Because  this  is  an  administrative  rather  than  a  judicial
     proceeding, the CPLR is not applicable.

     Section 307(2) of the  State  Administrative  Procedure  Act  provides  in
     substance that agency personnel assigned to render a decision or  to  make
     findings of fact and conclusions of law shall not communicate directly  or
     indirectly with any person or party in connection with any issue of  fact,
     nor with any party or their representative in connection with any issue of 
     law, except upon notice and opportunity for all  parties  to  participate;
     and that such agency personnel may communicate with other members  of  the
     agency, and may have the aid and advice of agency staff other  than  staff
     who are or have been engaged in the investigative or prosecuting functions 
     in connection with the case under consideration  or  a  factually  related
     case.  The evidence whose use the landlord objects to appears  to  be  the
     rent for Apartments 4L  as  established  in  HEMPTA  83-262.  Because  the
     landlord was afforded an opportunity  to submit the prior  lease  for  the
     subject apartment but failed to do so, and because the rent for  Apartment
     4L  was  obtained  from  an  earlier  proceeding,  the  landlord  is   not
     persuasive in claiming that the information was obtained ex parte or  that
     it did not have notice or  an  opportunity  to  be  heard  regarding  this
     evidence.  It is noted, use of this  information  did  not  result  in  an
     adjustment of  the  tenant's  initial  rent,  but  rather  resulted  in  a
     determinationon that the tenant's initial rent was lawful.

     Concerning the landlord's contention that the Administrator's order should 
     be barred by laches because it was issued more  than  3  years  after  the
     tenant's complaint and many rights have arisen  since  the  complaint  was
     filed: laches is used as an equitable  defense,  based  generally  on  the
     claimed neglect of a party  to  assert  a  right  or  claim  which,  taken
     together with  a  lapse  of  time  and  other  circumstances,  has  caused
     prejudice to an adverse party.  The tenant cannot be said to have been 

     guilty of laches, having filed a fair market rent appeal shortly after his 
     apartment became subject to the Emergency Tenant Protection Act  of  1974.
     The DHCR is not guilty of laches because it is not a party that has failed 
     to assert a right, but is rather  the  adjudicator  of  rights  which  the
     tenant has asserted in a timely fashion.  In any event, the  landlord  was
     aware since April 1983 that there was a proceeding  pending,  involving  a
     claim that the rent charged was in excess of the fair  market  rent.   The
     Administrator's order of August 20, 1986 merely resulted in  rolling  back
     the rent for the tenant's renewal lease to what the landlord  should  have
     been charging, and directing a refund (without interest) of  amounts  that
     the owner had actually collected in excess of the  legal  regulated  rent.
     This would seem to be a minimal amount of "harm" resulting from any  delay
     in administrative determination since the current rent,  as  well  as  the
     total amount of rent collected (after refunding excess  rent  pursuant  to
     the Administrator's order), is the same that it would  have  been  if  the
     Administrator had issued an order  immediately  after  the  tenant's  fair
     market rent appeal was filed.  Even if  the  DHCR  were  somehow  a  party
     susceptible to having the equitable defense of laches raised  against  it,
     that defense would not be particularly convincing in this case.

     Section 203(1) of the  State  Administrative  Procedure  Act  provides  in
     substance that no rule shall become effective until it is filed  with  the
     Secretary of State.  Section 102(2)(a) in pertinent part defines "rule" as 
     "the whole or part of each agency statement, regulation or code of general 
     applicability  that  implements  or  applies  law,   or   prescribes...the
     procedure or practice requirements of any agency, including the amendment, 
     suspension or  repeal  thereof..."   The  Tenant  Protection  Regulations,
     promulgated pursuant to the authority of the Emergency  Tenant  Protection
     Act of 1974 (ETPA), constitute such  a  rule,  and  were  properly  filed.
     Section  9  NYCRR  2502.3(a)(2)  (formerly  Section  33)  of  the   Tenant
     Protection Regulations provides in substance that the determination of the 
     "fair market rent" shall be guided by  the  fair  market  tent  guidelines
     promulgated by the Rent Guidelines Board Section 4 of the ETPA establishes 
     county rent guidelines boards, each of  which  "shall  establish  annually
     guidelines for rent adjustments which,  at  its  sole  discretion  may  be
     varied and different for and within the several  zones  and  jurisdictions
     of the board...[a]s soon as practicable after its creation and  thereafter
     not later than July first of each year, a rent guidelines board shall file 
     with the State Division of Housing and Community Renewal its findings  for
     the preceding calendar year, and shall  accompany  such  findings  with  a
     statement of maximum rate or rates of rent adjustment, if any, for one  or
     more classes of accommodation subject to this act, authorized  for  leases
     or other rental agreements commencing during the  next  succeeding  twelve

     Nassau County Rent  Guidelines  Board  Guideline  No.  17  was  the  first
     guideline  promulgated  for  housing  accommodations  in  the  Village  of
     Hempstead after that municipality became  subject  to  the  ETPA  and  the
     Tenant Protection Regulations.  Guideline 17  establishes  the  guidelines
     to be used by the DHCR for the determination of fair market rent  appeals.
     Because the landlord had not furnished any evidence of the prior  rent  of
     the subject apartment, the Administrator  compared  the  tenant's  initial
     rent  with  the  rent  of  a  comparable  apartment  in  the  building  as
     established in a prior Administrator's order and based thereon  found  the
     tenant's initial rent to be lawful.  While the provisions in the ETPA  and
     the Tenant Protection Regulations that DHCR be guided by the fair market 

     rent guidelines of the County Rent Guidelines Board constitute "rules" 
     that are required to be (and are) filed with the Secretary of 
     State, the guidelines themselves are not "rules" (although they are 
     formulated through public input and public hearings, are  filed  with  the
     DHCR, and are available to the public), nor  are  DHCR  policies  used  to
     apply them, including the  policy  of  using  the  rent  of  a  comparable
     apartment where a landlord has failed to provide a requested prior lease.

     Regarding the landlord's contention that Section 2502.3(a) of  the  Tenant
     Protection Regulations required the tenant to present facts which  to  the
     best of his information and belief support an  allegation  that  the  rent
     charged was in excess of the fair market rent, the Commissioner notes that 
     the filing of a fair market rent appeal by the tenant is simply one way of 
     beginning a proceeding before the DHCR, and of informing a  landlord  that
     it has to justify the lawfulness of the rent  being  charged.   Because  a
     landlord is obligated to charge only lawful rents, it has  the  burden  of
     providing their lawfulness when called upon to do so either by a  tenant's
     complaint or by a proceeding instituted by the DHCR  pursuant  to  Section
     2507.2 (formerly Section 82) of the Tenant Protection Regulations.   While
     the tenant's provision of factual information may prove useful to the DHCR 
     in determining a complaint, the failure to provide factual information doe 
     not invalidate  an  otherwise  valid  complaint,  particularly  since  the
     directive in Section 2502.3(a) is qualified by the phrase "to the best  of
     his information and belief," and therefore cannot be read to create a firm 

     Regarding the owner's contention that the initial legal regulated rent  as
     adjusted did not include a vacancy allowance or guideline  adjustment,  it
     is again noted that the tenant's initial rent was  not  adjusted  but  was
     determined to be lawful by comparing the tenant's initial  rent  with  the
     rent previously established for a comparable apartment.  It was  therefore
     unnecessary to establish the initial legal regulated  rent  by  increasing
     the prior rent for a comparable  apartment  by  a  guideline  and  vacancy
     allowance, as was done in HEMPTA 83-318, the case cited by the owner.

     THEREFORE, in accordance with the Emergency Tenant Protection Act of 1974, 
     and the Tenant Protection Regulations, it is

     ORDERED, that this petition be, and the same hereby is,  denied  and  that
     the District Rent Administrator's  order  be,  and  the  same  hereby  is,


                                             ELLIOT SANDER
                                          Deputy Commissioner


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