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 
          IN THE MATTER OF THE ADMINISTRATIVE :  ADMINISTRATIVE REVIEW
          APPEAL OF                              DOCKET NO. BA 110287 RO
                                              :  DRO DOCKET NO. Q3118592R
               WINSTON HOUSE ASSOCIATES          TENANT: LORRAINE M. BARRERO  
                   

                                PETITIONER    : 
          ------------------------------------X                             
             ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW


               On December 31, 1986, the above-named petitioner-owner filed a 
          Petition for Administrative Review against an order issued on 
          November 26, 1986, by the Rent Administrator, 10 Columbus Circle, 
          New York, New York, concerning the housing accommodations known as 
          167-10 Crocheron Avenue, Queens, New York, Apartment No. 5P.  The 
          petition was dismissed on July 19, 1991, on the basis that it was 
          not timely filed.  On July 31, 1991, the proceeding was reopened 
          for consideration on the merits on the basis that the owner had 
          submitted evidence showing its petition was in fact, timely filed.

          The Administrative Appeal is being determined pursuant to the 
          provisions of Section 2522.4 of the Rent Stabilization Code.

          The issue herein is whether the 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 in March 1984, by 
          the filing of a rent overcharge complaint by the tenant in which 
          the tenant stated that she first moved to the subject apartment on 
          February 1, 1981, at a rental of $375.00 per month.

          On October 30, 1984, the owner was serve with a copy of the 
          tenant's complaint and directed to submit a complete rental 
          history including copies of invoices showing costs and dates of 
          installation for any rent increases based on new equipment.

          On November 7, 1984, the owner submitted a response including 
          a copy of a letter dated January 5, 1981 from Cerbe Building Corp. 
          at the same address and telephone number as the owner.  In said 
          letter it was stated that certain improvements in the kitchen of 
          the subject apartment totalling $2,903.62 had been done.  No 
          actual invoice or date for the work done was included.

          BA 110287 RO










          On September 5, 1986, the owner was directed to substantiate 
          the improvements listed in the January 5, 1981 letter from Cerbe 
          Building Corp. by sending a copy of a paid bill.  In a reply dated 
          September 10, 1986, the owner resubmitted a copy of the January 5, 
          1981 letter from Cerbe Building Corp.

          In Order Number CDR 27,673, the Rent Administrator determined 
          that the tenant had been overcharged in the amount of $7422.09 and 
          directed the owner to refund such overcharge to the tenant.  In 
          such determination no allowance was made for any kitchen 
          improvements on the basis that the owner had not substantiated the 
          costs of any improvements.

          In this petition, the owner alleges in substance that it was 
          entitled to a rent increase based on the kitchen improvements, 
          that the tenant never denied that improvements had been made, that 
          the owner was never notified that its submission of evidence was 
          incomplete, and that it had submitted cancelled checks in support 
          of its contention.  Along with its petition, the owner submitted 
          copies of two cancelled checks made out to Cerbe Building Corp. 
          dated October 10, 1980 and March 4, 1981, for $3000 and $2520.00 
          respectively.  Nothing on these checks indicated they were for 
          work done in the subject apartment.

          In answer to the owner's petition, the tenant stated in 
          substance that the kitchen work was done prior to October of 1980 
          as the subject apartment was rented to Edith Chiarucci as of at 
          least November 1980 and the kitchen work was already done at that 
          time and that the tenant herein never signed any agreement 
          regarding the kitchen improvements.

          In response to the tenant's answer, the owner stated in 
          substance that it had never contended that the kitchen was 
          renovated on October 1980, but that the copies of checks were 
          submitted as proof of costs and reflect the date of payment for 
          work already completed, that the tenant has conceded that the 
          kitchen was renovated and that the owner was not required to 
          obtain the tenant's approval for improvements made when the 
          subject apartment was vacant.

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

          Section 2522.4 of the Rent Stabilization Code provides in 
          pertinent part, that an owner is entitled to a rent increase of 
          1/40th of the total cost including installation of new equipment 
          or improvements provided to the tenant's housing accommodation on 
          written tenant consent to the rent increase.  In the case of 
          vacant housing accommodations, tenant consent is not required.

          In the instant case, the owner did not submit proof to 
          substantiate the cost of the improvements in the proceeding before 
          the Rent Administrator although specifically directed to do so.  
          It is noted that such proof is especially important and subject to 
          BA 110287 RO



          close scrutiny in this case since the owner's contractor Cerbe 
          Building Corp. is listed as having the same address and telephone 
          number as the owner.  The owner's submission of canceled checks 
          was made for the first time on appeal and cannot properly be 
          considered herein since this is not a de novo proceeding.  
          Moreover, an examination of such checks and the letter from Cerbe 
          Building Corp. submitted below does not show when the kitchen work 
          was done in the subject apartment or if such work was in fact done 
          when the subject apartment was vacant so that tenant consent would 
          not have been necessary.  It is noted that the owner was directed 
          to supply such information in the proceeding before the Rent 
          Administrator.  In addition the amounts listed on the checks - 
          $3000 and $2520.00 - do not match the amount claimed in the 
          January 5, 1981 letter from Cerbe - $2903.62.  Accordingly, the 
          Rent Administrator's order disallowing a rent increase for the 
          improvements and finding a rent overcharge was warranted.

          This order may upon the expiration of the period in which the 
          owner may institute a proceeding pursuant to Article 78 of the 
          Civil Practice Law and Rules, be filed and enforced as a judgment 
          or not in excess of twenty percent per month of the overcharge may 
          be offset against any rent thereafter due the owner.

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

          ORDERED, that this petition for administrative review be, and 
          the same hereby is, denied, and, that the order of the Rent 
          Administrator be, and the same hereby is, affirmed.

          ISSUED



                                                                        
                                          ELLIOT SANDER
                                          Deputy Commissioner




                                                    
          ```````````````


















          ADMINISTRATIVE REVIEW BUREAU
                                COVERING MEMORANDUM






















          ARB Docket No.: BA 110287 RO







          DRO Docket No/Order No.: Q3118592R







          Tenant(s): Lorraine M. Barrero







          Owner: Winston House Associates







          Code Section: 2522.4 of the RSC







          Premises: 167-10 Crocheron Ave., Queens, New York, Apt. 5P







          Order and Opinion Denying Petition                                 
                           






          Petition denied on basis owner did not substantiate cost and 
          date of installation of kitchen improvements so that Rent 






          ADministrator correctly did not allow rent increase for kitchen 
          improvements.







































          APPROVED:















          Processing Attorney:                                             







          Supervising Attorney:                                            







          Director:                                                         






              
          Deputy Commissioner:                                             







          Mailed copies of Order and Determination to:






                           Tenant(s)                 
            Owner             






            Tenant's Atty             
            Owner's Atty              














            Date:              :  by               
            signature






            







                                                                             
                                      







































































    

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