DOCKET NUMBER: BD 210237-RO & BD 210152-RO
                                 STATE OF NEW YORK
                           OFFICE OF RENT ADMINISTRATION
                                    GERTZ PLAZA
                              92-31 UNION HALL STREET
                              JAMAICA, NEW YORK 11433

     APPEAL OF                              DOCKET NO.: BD 210237-RO
                                         :              BD 210152-RO
                                            DRO DOCKET NO.: K 3106947-R
                           PETITIONER    : 


     On April 15, 1987 the above named petitioner-owner filed  a  petition  for
     administrative review against an order issued on  March  16,  1987  by  an
     administrator concerning the housing accommodation  known  as  8701  Shore
     Road, Apartment Number 333, Brooklyn, New York wherein  the  Administrator
     determined  that  the  tenant  had  been  overcharged  in  the  amount  of
     $3,997.72 including interest on those overcharges collected  on  or  after
     April 1, 1984.

     The owner's petition was erroneously assigned two docket numbers which are 
     consolidated herein for disposition.

     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 commenced on March 30, 1984 when the tenants  filed  a
     complaint in which they claimed they had not  received  an  accounting  of
     their apartment's (number 333) prior rental history  pursuant  to  section
     42A of the former rent stabilization code.

     The owner was served with a copy of the complaint on October 26, 1984  and
     was requested to submit complete copies of all leases or rent records from 
     the Base Rent Date to the date the complaining tenants took occupancy.

     In answer to the complaint, the owner indicated that the  base  rent  date
     for the subject apartment is February  1,  1979.   Copies  of  leases  and
     renewals for the period from February 1, 1979  through  January  31,  1986
     were submitted.

     On June 16, 1986, the owner was asked to submit a copy of a DC-2 notice or 
     a copy of the landlord's report of statutory decontrol  to  establish  the
     date the apartment became vacancy decontrolled.  The owner responded  that
     it was a new owner and did not have a DC-2 notice but enclosed a copy of a 
     CAB opinion (T/A 10285) issued October 13, 1983 determining a fair  market
     rent appeal filed by the tenant of apartment 633 and establishing the 
     adjusted legal regulated rent at $421.29  effective  June  5,  1980.   The
     Administrator determined that the owner had failed to provide a complete 

     DOCKET NUMBER: BD 210237-RO & BD 210152-RO
     rental history and established the lawful stabilized  rent  by  using  the
     prior rent charged on February  1,  1979  of  $350.00  minus  a  guideline
     increase of 6.5% and vacancy allowance of 5% for a base rent of $313.90.

     In the petition for Administrative Review the owner asserts  that  it  had
     filed a timely answer to the tenant's complaint in which it conceded  that
     it did not have a copy of the DC-2 notice and requested that the rent  for
     the subject apartment be determined based on comparability data as it  had
     been by the CAB for another apartment in the same line.  The rent for that 
     apartment had been established using a comparable rent in  the  "27"  line
     because all the apartments in the "33" line were rent controlled  on  June
     30, 1974.

     In answer to the petition, the tenant contends that the prior occupants of 
     their apartment were stabilized and were  paying  less  than  $350.00  per
     month and that other apartments in the "33" line  were  decontrolled  when
     the tenants took occupancy in February 1979.

     After a careful consideration of the evidence of record, the  Commissioner
     is of the opinion that the owner's petition should be granted.

     Section 42A of the former Rent Stabilization Code requires that  an  owner
     retain complete records for each stabilized apartment in effect from  June
     30, 1974 (ro the date the apartment became subject to rent  stabilization,
     if later) to date and to produce such records to t he DHCR upon demand.

     Section 25-216 of Rent Stabilization Law, effective April 1, 1984, limited 
     an owner's obligation to provide rent records by providing that  an  owner
     may not be required to maintain or produce rent records for  more  than  4
     years  prior  to  the  most  recent   registration,   and   concomitantly,
     established a 4 year limitation on the calculation of rent overcharges.

     It has been the DHCR's policy that overcharge complaints  filed  prior  to
     April 1, 1984 are to be processed pursuant to the law or  Code  in  effect
     on March  31,  1984.   (See  Section  2526.1(a)(4)  of  the  current  Rent
     Stabilization Code.)  The DHCR has therefore applied Section  42A  of  the
     former Code to  overcharge  complaints  filed  prior  to  April  1,  1984,
     requiring complete rent records in these cases.  In following this policy, 
     the DHCR has sought to be consistent with the legislative  intent  of  the
     Omnibus Housing Act (Chapter 403, Laws of 1983), as implemented by the New 
     York City Conciliation and Appeals Board (CAB), the predecessor agency  to
     the DHCR, to determine rent overcharge complaints filed with the CAB prior 
     to April 1, 1984 by applying the law in effect at the time such complaints 
     were filed so as not to deprive tenants whose  overcharge  claims  accrued
     more than 4 years prior to April 1, 1984 of their right  to  recover  such
     overcharges.  In such cases, if the owner failed to produce the required 
     rent records, the lawful stabilized rent would be determined  pursuant  to
     the default procedure approved by the Court of Appeals in 61  Jane  Street
     Associates v. CAB, 65 N.Y.2d 898, 493 N.Y.S.2d 455 (1985).
     However, it has recently been held in the case of J.R.D. Mgt. v.  Eimicke,
     148 A.D.2d 610, 537 N.Y.S.2d 667 (App. Div.  2d  Dep't  1989),  motion  of
     leave to reargue or for leave to appeal to the  Court  of  Appeals  denied
     (App. Div. 2d dep't, N.Y.L.J., June 28, 1989, p. 25,  col.1),  motion  for
     leave to appeal  to  the  Court  of  Appeals  denied  (Court  of  Appeals,
     N.Y.L.J., Nov 24, 1989, p. 24,col. 4)., motion for leave to reargue denied 


     DOCKET NUMBER: BD 210237-RO & BD 210152-RO
     (Court of Appeals, N.Y.L.J., Feb 15, 1990, p.25, col. 1), that the law  in
     effect at the time of the determination of  the  administrative  complaint
     rather than the law in effect at the time of the filing of  the  complaint
     must be applied and that the DHCR could not require an  owner  to  produce
     more than 4 years of rent records.

     Since the issuance of the decision in JRD, the Appellate  Division,  First
     Department, in the case of Lavanant v. DHCR, 148 A.D.2d 185, 544  N.Y.S.2d
     331 (App. Div. 1st Dep't 1989), has issued a decision in  direct  conflict
     with the holding in JRD.  The Lavanant court expressly  rejected  the  JRD
     ruling, finding that the DHCR may properly  require  an  owner  to  submit
     complete rent records, rather than records for just four years,  and  that
     such requirement is both rational and supported by the law and legislative 
     history of the Omnibus Housing Act.

     Since in the instant case the subject dwelling  unit  is  located  in  the
     Second Department, the DHCR is constrained to follow the JRD  decision  in
     determining the tenant's overcharge complaint,  limiting  the  requirement
     for rent records to April 1, 1980.

     In the instant case, the complaining tenant took occupancy in 1979  and  a
     review of the rents they paid during their initial lease and in subsequent 
     renewals reveals that there was no overcharge.

     Accordingly, the Administrator's order should be revoked and if the  owner
     has already complied with the directive to refund the  tenants  should  be
     afforded twelve months to pay off the arrears that are now due.

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

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


                                             ELLIOT SANDER
                                          Deputy Commissioner


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