ART 13192 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
                                
                                
----------------------------------x     S.J.R. DOCKET NO.: 5050
IN THE MATTER OF THE ADMINISTRATIVE     ADMINISTRATIVE REVIEW
APPEAL OF                               DOCKET NO.:
                                        ART 13192-L
         LEE NORIA WIGLEY,              DISTRICT RENT
                                        ADMINISTRATOR'S DOCKET
NO.:
                        PETITIONER      L 004208 SH
----------------------------------x


ORDER AND OPINION DENYING THE PETITION FOR ADMINISTRATIVE REVIEW
                      AFTER RECONSIDERATION
                                
                                
On  August 30, 1986, the above-named tenant filed a Petition  for
Administrative Review of an order issued on July 30,  1986  by  a
District  Rent Administrator concerning the housing accommodation
known as Apartment 2315 Henry Hudson Hotel, 353 West 57th Street,
New  York, New York, wherein tenant's application for a rent  re-
duction  was  dismissed and it was determined that no  overcharge
occurred.

On  May  9,  1990  the Commissioner issued an order  and  opinion
denying tenant's petition and affirming the District Rent  Admin-
istrator's  finding of no overcharge.  It was further found  that
the tenant was entitled to permanent status.

Subsequent  thereto,  the tenant sought judicial  review  of  the
Commissioner's order in the Supreme Court (N.Y. County)  pursuant
to  Article  78  of the Civil Practice Law and Rules.   By  order
issued  on May 21, 1991 the Court (Ryp, J.) granted the  tenant's
petition and application to the extent of remanding the matter to
the  Division  of  Housing  and  Community  Renewal  for  further
consid-eration.

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 petition for review.

On  September 3, 1985, the subject tenant, filed a complaint with
the Division of Housing and Community Renewal (DHCR) alleging

that  she  was being overcharged, that the owner was refusing  to
provide rent receipts in a timely manner, that there had occurred
a  diminution of services, and that the owner refuses to  provide
her with permanent tenant status and rental rate.

After affording the owner an opportunity to answer, and after the
carrying  out  of fact finding and a physical inspection  of  the
accommodation,  on July 30, 1986 the District Rent  Administrator
issued the order here under review dismissing the application for
a rent reduction, directing the owner to provide rent receipts in
a timely manner, and determining that no overcharge occurred.

In  her petition for administrative review, the tenant alleges in
substance  that  the order under review is in error  due  to  the
District  Rent Administrator's failure to consider her  complaint
that the owner refused to grant her permanent status.

In  answer to the tenant's petition, the owner alleges  that  the
subject  accommodation  has always been  rented  on  a  transient
basis.

After  careful consideration the Commissioner is of  the  opinion
that this petition should be denied.

The Commissioner notes that the tenant took occupancy in 1981  at
which  time  free market rents were legal, and that the  tenant's
rent  was  not increased thereafter.  Accordingly, there  was  no
overcharge.

The  Commissioner further notes, after close examination  of  the
record  in the administrator's proceeding, that the Administrator
failed  to  address one of the items contained  in  the  tenant's
complaint,  to  wit  - her allegation that she  had  been  denied
permanent status.

The   Code  of  the  Metropolitan  Hotel  Industry  Stabilization
Association defines, in Section 2(k), a "permanent tenant" as,

            "an  individual or family who at  any  time
          since   May  31,  1968,  or  hereafter,   has
          con-tinuously resided in the same hotel as  a
          principal residence for a period of at  least
          six  months.   A family includes  a  husband,
          wife,  son,  daughter, stepson, stepdaughter,
          father,   mother,  father-in-law  or  mother-
          in-law;"
          
          
The Commissioner notes that the tenant took occupancy on February
24,  1981.   Accordingly, the Commissioner finds that the  tenant
became a permanent tenant on August 24, 1981 by operation of law.

The  gravamen of the tenant's overcharge Complaint is that perma-
nent  tenant status, per se, conferred upon her right to a  lower
rental. The Commissioner finds that it did not.  As noted  above,
the  tenant took occupancy during a time when the owner  had  the
right  to  charge a free market rent.  Although it may have  been
the  owner's practice to offer lower rentals to permanent tenants
at  that time, there existed no Code provision or other provision
of  law which required that practice or which required the  owner
to  continue  that practice.  Once the tenant acquired  permanent
status  the  owner  was  entitled on renewals,  to  increase  the
tenant's   monthly  rental  in  accordance  with  the  applicable
percentages permitted by subsequent guideline orders.   The  Com-
missioner  notes that the tenant's rent has never been  increased
during  the  more than ten years of her occupancy.   Accordingly,
the  tenant  has not been overcharged and the Commissioner  finds
that  the  District  Rent Administrator's determination  on  this
issue was correct and should be affirmed.

The  Commissioner finally notes that the owner, having failed  to
collect appropriate guideline increases over the years has waived
those increases and may not now collect them retroactively.


THEREFORE,  pursuant to the Rent Stabilization Law and  Code  and
the   Code  of  the  Metropolitan  Hotel  Industry  Stabilization
Associ-ation, 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 affirmed.


ISSUED:




ELLIOT SANDER
                                         Deputy Commissioner
    

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