BD 410501-R0
                                
                        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 410501-RO
       SOLIL MANAGEMENT CORP.,          DRO DOCKET NOS.:
L 3114829-R;  CDR 29456
                        PETITIONER      TENANT: ROBIN MC CABE
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      ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE
        AND MODIFYING DISTRICT RENT ADMINISTRATOR'S ORDER
                                
On  April  30,  1987,  the above-named petitioner-owner  filed  a
Peti-tion  for Administrative Review against an order  issued  on
April  13, 1987, by the District Rent Administrator, 10  Columbus
Circle,  New York, New York concerning the housing accommodations
known  as Apartment 14-C, at 160 West 73rd 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 provisions in
effect on March 31, 1984.  Therefore, unless otherwise indicated,
reference to sections of the Rent Stabilization Code (Code)  con-
tained herein are to the Code in effect on April 30, 1987.

The issue in this appeal is whether the Administrator'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  Section  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 tenant, in which  she
stated that she had commenced occupancy on May 16, 1976 at a rent
of $260.15 per month.

The  owner  was served with a copy of the tenant's complaint  and
was  requested to submit rent records to prove the lawfulness  of
the  rent  being charged.  In answer to the complaint, the  owner
submitted  only  leases  from 1981, and a  Landlord's  Report  of
Stat-utory  Decontrol showing that the subject  apartment  became
subject to Rent Stabilization on April 1, 1975.  The owner stated
that  it had acquired the subject premises on July 22, 1982,  and
that  it  had  not  received any other records  for  the  subject
apartment. The copy of the tenant's complaint sent to  the  prior
owner Lesim Realty was returned as undeliverable.

In   an  order  issued  on  April  13,  1987  the  District  Rent
Adminis-trator  set the tenant's lawful initial  rent  using  the
Division  of  Housing  and  Community  Renewal's  (DHCR)  default
procedure,  deter-mined that the tenant had been  overcharged  in
the  amount  of $5,111.95 as of September 30, 1986, and  directed
the  owner to refund such overcharge to the tenant as well as  to
reduce the rent.  The prior owner was directed to make refunds to
the  tenant for those overcharges collected by it.  The  copy  of
the  order  sent  to  the  prior  owner  was  also  returned   as
undeliverable.

In  this  petition,  the  owner contends in  substance  that  the
Admin-istrator  was incorrect in stating that it "has  failed  to
provide a full rental history for the subject apartment although
requested  to  do  so,"  since it submitted  proof  of  statutory
decon-trol, and since the prior owner did not furnish it with the
lease  effective April 1, 1975.  With its petition the owner  has
submit-ted  materials  already contained in  the  Administrator's
file.

The  Commissioner is of the opinion that this petition should  be
denied,  and that the District Rent Administrator's order  should
be modified.

Section  42A of the former Rent Stabilization Code requires  that
an  owner retain complete rent records for each stabilized apart-
ment in effect from June 30, 1974 to date and produce them to the
DHCR  upon  demand.  If the apartment was decontrolled  from  the
Rent  Control  Law  after June 30, 1974 the  owner  must  provide
satisfactory documentary evidence of the apartment's date of
decontrol, and produce a rental history from that date.



In  the present case, the owner was directed to submit a complete
rental history.  While the owner submitted evidence that the base
date  was  April 1, 1975, it did not submit any evidence  of  the
base  date  rent, so it has not been shown that the complainant's
initial  rent on May 16, 1976 represented a lawful increase  over
the  base  date  rent.  Because the owner had  defaulted  in  its
ob-ligation to make available a full rental history from the base
date  to justify the rents charged, it was proper for the  Admin-
istrator  to  use established DHCR procedures to set the  default
rent.

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 by the tenant
in  the same manner as a judgment or not in excess of 20% thereof
per  month  may  be  offset against any rent thereafter  due  the
owner.   Because the owner acquired the subject premises on  July
22,  1982, the Administrator's order should be modified to  state
that the owner is responsible for the overcharges of $2,408.00 on
and  after  July  22,  1982.  Although the Administrator's  order
directed  the prior owner Lesim Realty at 515 Madison  Avenue  to
make   refunds  for  those  overcharges  collected  by  it,   the
Commis-sioner notes that both the complaint and the order sent to
Lesim Realty were returned by the postal service.

Because  of  the  possibility that the  rents  charged  were  not
reduced  after the Administrator's order, the owner is  cautioned
to  adjust  the  rent, in leases after those  considered  by  the
Administrator, to amounts no greater than that determined by  the
Administrator's order plus any lawful increases, and to  register
any adjusted rents with the Administrator's order being given  as
the  reason for the adjustment.  Because of the possibility  that
the  tenant  herein  may  have vacated  by  the  time  that  this
deter-mination is issued, a copy of this determination  is  being
mailed to the tenant-in-occupancy.














THEREFORE,  in  accordance with the Rent  Stabilization  Law  and
Code, 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,  modified in accordance with this order and  opinion.
The  lawful  stabilization rent is $337.56 as  of  September  30,
1986.   The  total  overcharge attributable to  Solil  Management
Corporation is $2,408.00 as of September 30, 1986.


ISSUED:




ELLIOT SANDER
                                         Deputy Commissioner
    

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