BD 410426-RO;  CA 410253-RO
                                
                        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
                                
                                
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IN THE MATTER OF THE ADMINISTRATIVE     ADMINISTRATIVE REVIEW
APPEAL OF                               DOCKET NOS.:
                                        BD 410426-RO;
                                        CA 410253-RO;
       WEINREB MANAGEMENT,
                                        DRO DOCKET NOS.:
L-3115608-R; CDR 28426;
                                        CDR 28426 As Amended
                        PETITIONER
----------------------------------x     TENANTS: DAVID & NANCY POLLEY


ORDER AND OPINION TERMINATING PROCEEDING IN DOCKET NO. BD 410426-RO
AND GRANTING PETITION FOR ADMINISTRATIVE REVIEW NO. CA 410253-RO
                                
                                
On  January  28,  1988 the above-named petitioner-owner  filed  a
Petition  for  Administrative Review (Docket  No.  CA  410253-RO)
against an order issued on December 29, 1987 by the District Rent
Administrator, 10 Columbus Circle, New York, New York con-cerning
housing  accommodations known as Apartment 4-L at 215  East  80th
Street,   New   York,   New  York  wherein  the   District   Rent
Administrator  determined  that the  owner  had  overcharged  the
tenant.

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
over-charge  and  fair  market  rent  proceedings  provide   that
determina-tion  of these matters be based upon the  law  or  code
provision  in  effect  on  March  31,  1984.   Therefore,  unless
otherwise   indi-cated,  reference  to  sections  of   the   Rent
Stabilization  Code (Code) contained herein are to  the  Code  in
effect on April 30, 1987.

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

The applicable sections of the Law are Section 26-516 of the Rent
Stabilization Law, Section 2526.1(a) of the current Rent Stabili-

zation  Code  and Sections 2(i)A(1)(b), 20A, 35 and  42A  of  the
former Rent Stabilization Code.

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 in March,
1984 of a rent overcharge complaint by the tenants, in which they
stated that they had commenced occupancy on December 1, 1970 at a
rent of $540.00 per month.

The  owner  was served with a copy of the complaint and  was  re-
quested  to  submit rent records to prove the lawfulness  of  the
rent  being charged.  In answer to the complaint, the owner  sub-
mitted a rental history from January 1, 1970.

In an order issued on December 16, 1986 the District Rent Admin-
istrator,  using the complainants' initial December 1, 1970  rent
as  the base date rent, found that there was no overcharge as  of
December 30, 1986.

On  February 25, 1987 the Administrator sent the parties a notice
that "[u]pon reconsideration, the District Rent Administrator  is
reopening  this proceeding and proposes to: Revoke the order  and
establish  whether  the rent collected is the  lawful  stabilized
rent."   The  notice stated that answer forms were enclosed.   On
March  2,  1987 the tenants wrote that no answer forms  were  en-
closed with the notice to them.

On  March 25, 1987 the Administrator issued a two-sentence  order
revoking the December 16, 1986 order.

On  April  30, 1987 the owner filed a Petition for Administrative
Review  (Docket  No.  BD 410426-RO) against the  March  25,  1987
revo-cation order, contending in substance that the February  25,
1987  notice  had contained no forms on which to respond  and  no
allega-tions to which to respond; and that it should be given  an
opportunity to respond to the allegations which resuslted in  the
revocation order.

On  May 21, 1987 the owner was requested to submit a copy of  the
May 31, 1968 Base Date lease or rent ledgers.  On August 31, 1987
the  owner  was sent a Final Notice of Pending Default requesting
that  lease  and setting forth the Division of Housing  and  Com-
munity Renewal's (DHCR's) default procedures.



On  December  29, 1987 the Administrator issued an  order  super-
seding  the order of December 16, 1986, and finding an overcharge
of  $19,234.27  as of December 31, 1987 after setting  a  default
rent  because  the owner had not submitted a rental history  from
May 31, 1968.

In its petition (Docket No. CA 410253-RO) against that new order,
the  owner  contends in substance that utilization of the  leases
from  1970  will  give the lawful stabilization rents;  that  its
original  answer had contained a lease rider giving the  name  of
the  tenant prior to January 1, 1970 and showing her as having  a
rent  of  $390.00; and that it purchased the subject building  in
November, 1984.

In  answer, the tenants assert in substance that the base date is
May 31, 1968; and that a rider indicating a rent of $390.00 prior
to  January 1, 1970 is not evidence of the prior rent or  of  the
rent in effect on the base date.

The  Commissioner is of the opinion that the proceeding in Docket
No.  BD  410426-RO  should be terminated, and  that  the  owner's
peti-tion in Docket No. CA 410253-RO should be granted.

The Administrator's bare order of May 21, 1987, revoking an order
which  had found that all of the complainants rents were  lawful,
had  no practical effect.  It did not require or even hint at any
particular  rents to be charged or overcharges  to  be  refunded.
That  was  done by the new order of December 29, 1987, which  the
owner  has  had  the opportunity to contest on the  merits.   The
owner's  petition  against  the revocation  order  was  therefore
premature, and that appeal proceeding should be terminated.

Section  20A of the former Rent Stabilization Code provides  that
the stabilization rent for a dwelling unit subject to the Code on
June  30, 1974 shall be the rent charged and paid on May 31, 1968
plus   subsequent  guidelines  increases.   Section   2(i)a(1)(b)
pro-vides  that the initial legal regulated rent for  a  dwelling
unit  that was subject to the Code on June 30, 1971, was  vacated
during  the  period of "vacancy decontrol" (July 1, 1971  through
June  30,  1974) and became subject to the Code on July  1,  1974
shall be the rent charged and paid on June 30, 1974.

The  lease  commencing  January 1, 1970 submitted  by  the  owner
includes a rider initialed by the prior tenant giving the name of
the  previous tenant and listing her rent as $390.00  per  month.
The   Commissioner  considers  this  a  business   record   which
satisfac-torily  establishes that a rent of $390.00  was  charged
prior  to January 1, 1970, and almost certainly charged prior  to
the  effective date of the Rent Stabilization Law  of  1969.   As
shown  on the rent calculation chart attached hereto and  made  a
part  hereof,  there  has  been full  compliance  with  the  Rent
Stabilization Code in charging increases above the pre-1970  rent
of  $390.00.  While the base date in the present case is May  31,
1968   the  Commis-sioner  considers  that  the  record  contains
reasonable  assurance that only lawful rents  have  been  charged
since the base date;
it  is  not  necessary  to  use the  DHCR  default  procedure  to
establish a lawful rent.

The  Commissioner notes that the default procedures upheld in  61
Jane Street Associates v. CAB, N.Y.L.J., May 9, 1984, p. 11, col.
4  (Sup. Ct. N.Y. Co. Greenfield, J.), affirmed, 108 A.D. 2d 636,
486  N.Y.S.  2d 694, affirmed 65 N.Y. 2d 898, 493 N.Y.S.  2d  455
(C.A.,  1985),  modified an owner's obligation to  produce  prior
rent  records to require such records going back to at least June
30,  1974 or the date of an apartment's entry into stabilization,
whichever was later.  The Commissioner also notes that  in  Cohen
v.  Mirabel, 527 N.Y.S. 2d 34 (A.D. 2d Dept. 1988),   motion  for
leave to appeal to the Court of Appeals denied, 533 N.Y.S. 2d 57,
the  DHCR's substitution of June 30, 1974 for May 31, 1968 as the
base date for an apartment continuously stabilized since at least
May 31, 1968 was upheld as rational.

As  shown  on the attached rent calculation chart, all  rent  in-
creases have been within the amounts allowed by the Guidelines as
of  November 30, 1987.  While a rent of $1,006.52, noted  in  the
Administrator's  amended order as being charged  for  the  period
from  December  1,  1987 to November 30, 1989 would  represent  a
lawful  6.5% increase for a 2-year renewal lease, the  file  does
not   actually  contain  such  a  lease.   While  the  owner  has
registered  a woman with a different last name with a lease  from
December 1, 1987 to November 30, 1989, the rent of $885.96 is the
reduced  rent given in the Administrator's amended order, without
any vacancy allowance, thus suggesting that the woman is actually
the complainant.  However, because of the uncertainty, this order
determines the lawful rents only as of November 30, 1987.

If  the owner has already complied with the Administrator's order
and there are arrears due to the owner as a result of the present
determination, the owner is directed to allow the tenants to  pay
off the arrears in twenty four equal monthly installments. Should
the  tenants  vacate after the issuance of this  order,  or  have
pre-viously vacated, said arrears shall be payable immediately.


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









ORDERED, that the proceeding in Docket No. BD 410426-RO  be,  and
the  same  hereby  is, terminated; that the owner's  petition  in
Docket No. CA 410253-RO be, and the same hereby is, granted; that
the  District Rent Administrator's amended order of December  29,
1987  be,  and the same hereby is, revoked; and it is found  that
there has been no overcharge as of November 30, 1987.  The lawful
stabilization   rents  are  set  forth  on  the   attached   rent
calculation chart, which is fully made a part of this order.  The
lawful stabilization rent is $945.09 per month in the lease  from
December 1, 1985 to November 30, 1987.


ISSUED:




ELLIOT SANDER
                                         Deputy Commissioner
    

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