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
          APPEALS OF                             DOCKET NO. BG 410275 RO
                                              :             BJ 410001 RT
          ELI MAYER, LUI JR. REALTY CORP.,                  BI 410169 RO   
          AND QUEN-DUN CORPORATION BY                       CI 410262 RO
          YAU INTERNATIONAL, INC.                           CJ 410191 RO
                                                  DRO DOCKET NO. T/A 9980
                                PETITIONERS    :                 44062
          ------------------------------------X                  TC-079480-G  
                                                                 TC-080685-G
                                           

          ORDER AND OPINION GRANTING TENANT'S PETITION FOR ADMINISTRATIVE 
          REVIEW AND DENYING CURRENT OWNER AND PRIOR OWNER'S PETITIONS FOR 
          ADMINISTRATIVE REVIEW


          On July 2, 1987, October 5, 1987, September 2, 1987, 
          September 2, 1988 and October 12, 1988, the above-named 
          petitioners filed  Petitions for Administrative Review against  
          orders issued on May 28, 1987, July 29, 1987, and July 28, 1988, 
          by various Rent Administrators concerning the housing 
          accommodations known as 178-180 Fifth Avenue, New York, New York, 
          Apartment No. 4(2nd floor).  The Commissioner deems it appropriate 
          to consolidate these petitions for determination herein since they 
          involve common issues of law and fact.

          The Administrative Appeals are being determined pursuant to 
          the provisions of Sections 2526.1 and 2521.1 of the Rent 
          Stabilization Code and relevant provisions 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 issues raised by the administrative appeals.  

          The Commissioner notes that two of these proceedings were 
          originally 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 overcharge and fair market rent proceedings 
          provide that determination 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) contained herein are to the Code in 
          effect on April 30, 1987.

          Docket T/A 9980, CDR 30,281 was originally commenced on 
          November 2, 1981 by the filing of a fair market rent adjustment 
          application (hereafter fair market rent appeal) by the tenant in 
          BG 410275 RO et al










          which the tenant stated in substance that he first moved to the 
          subject apartment pursuant to a lease commencing August 1, 1981.

          Lui Jr. Realty Corp.(hereafter current owner) and Quen-Dun Corp. 
          by Yau International, Inc.(hereafter prior owner) were served with 
          a copy of the tenant's fair market rent appeal and afforded an 
          opportunity to submit June 30, 1974 or post June 30, 1974 
          comparability data for determining the fair market rent of the 
          subject apartment and directed to submit a complete rental history 
          for the subject apartment including a copy of and DC-1 or DC-2 
          Notice served on the tenant or any prior tenant.  The required 
          comparability data and rental history were not submitted.  On 
          April 2, 1987, the current owner stated in substance that the 
          floor which contained the subject apartment was a loft cut in two 
          to make two apartments prior to 1980 and that the tenant herein 
          signed a commercial lease upon renting the subject apartment in 
          1981.  

          In Order Number CDR 30,281 issued on May 28, 1987, the Rent 
          Administrator adjusted the initial legal regulated rent by 
          establishing a fair market rent of $255.53 effective August 1, 
          1981, the commencement date of the complaining tenant's initial 
          lease.  Based on the failure to submit June 30, 1974 or post June 
          30, 1974 comparability data, the Rent Administrator determined the 
          fair market rent using the special fair market rent guidelines 
          alone.  The Rent Administrator further determined that the tenant 
          had paid excess rent of $20,428.72 from August 1, 1981 to May 31, 
          1987, and directed the current and prior owners to refund that 
          portion of the excess rent that each had collected.

          In petition BG 410275 RO filed against docket T/A 9980, CDR 
          30,281 on July 2, 1987, the current owner contends, in substance 
          that it purchased the building subject to the existing commercial 
          loft lease, and without any knowledge of any objections of the 
          tenant; that sometime in 1975 or 1976 a fire substantially damaged 
          the premises, and substantial repairs and alterations were made 
          and the "subject premises" was divided from a larger loft; that it 
          is continuing in its efforts to correct the Certificate of 
          Occupancy and locate relevant building department records and 
          rental history documents; that, on information and belief, the 
          prior owner filed applications to legalize the alterations, and 
          had rented part of the subject premises as commercial space; that, 
          since the tenant took possession of the premises as a commercial 
          loft, in 1981, when the premises was not governed by rent control 
          or rent stabilization regulations. that this proceeding is 
          improper and the order should be vacated; that, soon after the 
          purchase of the building in 1984, the apartment was registered as 
          a rent stabilized unit; that, since the tenant did not timely 
          object to the apartment registration forms, the tenant should not 
          be permitted to object to said registration; and, if the rent 
          ordered by the Administrator is upheld, the 1981 base rent should 
          be increased by a 15% vacancy allowance, with subsequent increases 
          for the renewal leases in 1983 and 1985.

          BG 410275 RO et al





          In answer to petition BG 410275 RO, the tenant stated in 
          substance that the failure of the prior owner to advise the 
          current owner of the complaint cannot be blamed on the tenant; 
          that there were four apartments on the second floor (floor where 
          subject apartment is located) in 1939, in 1981, and at present; 
          that the owner's assertions regarding alterations are speculative 
          and undocumented; that the owner has had more than three years to 
          locate records; that the subject apartment was never rented as 
          commercial space, that the tenant has never used the subject 
          apartment commercially and that the prior tenant had a rent 
          stabilized lease and paid about $250.00 per month before vacating 
          in 1980.

          In answer to petition BG 410275 RO, the prior owner stated in 
          substance that it never received notice of the tenant's fair 
          market rent appeal or of the Rent Administrator's order although 
          it did receive a letter from the current owner including a copy 
          of the current owner's petition (said petition contained a copy of 
          the Rent Administrator's order issued under docket T/A 9980), that 
          upon information and belief the subject apartment is a r3gistered 
          loft or was previously commercial space so that the tenant herein 
          is precluded from filing a fair market rent appeal.

          Docket 44062 was commenced on September 26, 1984 by the 
          tenant's filing of an objection to the apartment registration.  In 
          an order issued on JUly 29, 1987 under said docket, the Rent 
          Administrator accepted the owner's contention that prior to the 
          tenant's occupancy, the space allotted to the subject apartment 
          was used commercially, found that the tenant's first rent of 
          $500.00 could not be challenged and stated that if free 
          electricity was part of the negotiated rent, it is a service tho 
          which the tenant was entitled.  In said order, the tenant's 
          address was incorrectly listed as 1787 Fifth Avenue rather than 
          178-180 Fifth Avenue.

          In petition BJ 410001 RT filed against docket 44062 on 
          October 5, 1987, the tenant alleges in substance that he never 
          received a copy of the Rent Administrator's order under docket 
          44062 from the DHCR but only received a copy as part of the 
          current owner's petition (BJ 410169 RO) on September 9, 1987; that 
          the prior fair market rent order T/A 9980 correctly determined the 
          rent, that the tenant acknowledges that electricity is not 
          included in the rent but that the owner has not installed a 
          separate electric meter in the subject apartment; and that the 
          subject apartment has been occupied residentially for over forty 
          years.

          In answer to petition BJ 410001 RT, the current owner 
          contended in substance that the tenant's petition was untimely; 
          that statements of other tenants in the subject premises support 
          the owner's claim that the subject apartment was not a prior 
          existing apartment and that prior tenant Joanne NOble rented all 
          of "2nd floor south space" and that all or part of the"2nd floor 
          south space" had been rented as commercial space prior to the 
          BG 410275 RO et al



          occupancy of the tenant herein although the owner is unable to 
          locate some of the prior owners and their rent records.








          In petition BJ 410169 RO filed against docket 44062 on 
          September 2, 1987, the current owner alleges in substance that it 
          is only appealing against that portion of the order in which the 
          Rent Administrator stated that if free electricity was part of the 
          negotiated rent, it is a service to which the tenant is entitled.  
          The current owner urges that it was not negotiated or agreed that 
          the owner would supply free electricity to the tenant, that 
          although the subject apartment and another apartment (apartment 3) 
          share a common electric meter, apartment 3 has been unoccupied for 
          most of the occupancy of the tenant herein and that the owner 
          intends to install a separate electric meter in the subject 
          apartment.

          Docket TC-079480-G, CDR 33,776 was originally commenced on 
          December 12, 1983 by the tenant's filing of a rent overcharge 
          complaint in which the tenant stated in substance that prior 
          tenant Janet Noble paid a rent of about $250.00 per month until 
          vacating in 1980 and that he paid an illegal broker's fee of 
          $500.00 to the prior owner.  The tenant submitted a receipt for 
          the broker's fee in support of this contention.

          The prior owner and the current owner were served with a copy 
          of the tenant's overcharge complaint and directed to submit a 
          complete rental history for the subject apartment.

          In a response dated March 5, 1984, the prior owner stated in 
          substance that it purchased the subject premises in June 1981, 
          that the subject apartment was vacant at the time of purchase and 
          that the tenant herein leased the subject apartment as semi 
          professional space.

          The current owner stated in substance that it purchased the 
          subject premises in April 1984, that the tenant' lease was renewed 
          for two years in April 1984, and that in June 1984, the subject 
          apartment was registered with the DHCR as a rent stabilized unit.

          In Order Number CDR 33,776 issued on July 29, 1988, the Rent 
          Administrator determined, on the basis that the current and prior 
          owners had failed to submit a complete rental history, that the 
          tenant had been overcharged in the amount of $13,162.54 from 
          August 1, 1981 through July 31, 1988 including interest on that 
          portion of the overcharge occurring on and after April 1, 1984 and 
          set the tenant's initial rent at $393.70 effective August 1, 1981.  
          The owner was also directed to refund the broker's fee of $500.00.

          Docket TC-080685-G was terminated on September 12, 1988, as a 
          duplicate of the aforementioned docket TC-079480-G, CDR 33,776.

          In petition CI 410262 RO filed against docket TC-079480-G, 
          CDR 33,776, on September 2, 1988, the current owner alleges in 
          substance that it is not responsible for the return of the 
          BG 410275 RO et al



          broker's fee; that as of July 1, 1987, the tenant has been paying 
          only $273.42 per month in accordance with T/A 9980 so that the 
          overcharge found herein should be reduced accordingly and that in 
          any event the owner is in agreement with the determination in 


          docket 44062 finding no rent overcharge occurred.

          In petition CJ 410191 RO (refiling of rejected petition CI 
          410002 RO) timely refiled against docket TC-079480-G, CDR 33,776, 
          on October 12, 1988, the prior owner alleges in substance that it 
          was not notified of the tenant's complaint or any deadline to 
          submit a complete answer, that it purchased the subject premises 
          without a complete rental history and the fact that the subject 
          apartment was previously utilized as commercial space entitled the 
          prior owner to charge a first rent to the tenant.

          The Commissioner is of the opinion that the tenant's petition 
          should be granted and that the current owner's and prior owner's 
          petitions should be denied.

          At the outset, the tenant's petition must be considered as 
          timely filed since the order appealed from was sent to the tenant 
          at an incorrect address and the tenant has stated that he never 
          received a copy of the order from the DHCR.

          With regard to the prior owner's contention that it never 
          received a copy of the tenant's fair market rent appeal or the 
          order issued under docket T/A 9980, the Commissioner notes that 
          the prior owner admitted receiving a copy of the current owner's 
          petition including a copy of said fair market rent order and all 
          of the prior owner's arguments against said order contained in its 
          answer to the current owner's petition are considered on the 
          merits herein.  In addition the prior owner received a copy of the 
          tenant's overcharge complaint and participated in the overcharge 
          proceeding contrary to its allegations under petition CJ 410191 
          RO.

          Turning to the merits, an examination of the records 
          discloses that pursuant to a Certificate of Occupancy for the 
          subject premises issued on February 21, 1939, the subject premises 
          consisted of several stores and 15 apartments including four 
          apartments on the second floor (floor where the subject apartment 
          herein is located).  Further maximum base rent records for the 
          subject premises indicate that in 1972 the subject premises was 
          listed as containing 18 rent controlled apartments including three 
          apartments on the second floor - one of which was listed as 
          apartment 4 - the subject apartment.  These records appear to 
          contradict the current owner's and prior owner's assertions that 
          the subject apartment was subdivided from larger space at a later 
          date.  In addition 1980 maximum base rent records also list the 
          subject premises as containing 18 apartments of which seven (not 
          including the subject apartment) remained subject to rent control.  
          There is no evidence in the record to support the current owner's 
          and prior owner's contentions that the subject apartment was ever 
          subdivided after extensive fire damage in 1975 or 1976 and used 
          BG 410275 RO et al




          commercially.  Statements submitted by two other building tenants 
          do not support such contention but merely state that Jo Anne Noble 
          occupied the 2nd floor south apartment until 1980 and that the 
          tenant herein than occupied the rear half of the second floor 
          south apartment in 1981.  Although the tenant herein did sign a 







          loft lease for the subject apartment in 1981, the current owner 
          and prior owner have submitted no evidence that the tenant herein 
          ever intended to, or did in fact, use the subject apartment in a 
          semi-professional or commercial manner and have not established 
          that the subject premises was ever registered with the Loft Board.  
          In addition neither the prior owner not the current owner have 
          submitted a complete rental history for the subject apartment 
          although directed to do so on numerous occasions.  The record in 
          this case taken as a whole supports the tenant's contention that 
          the subject apartment has always been used for residential 
          purposes.  Since any agreement by the tenant to waive his rights 
          under the Rent Stabilization Law and Code is void, the tenant's 
          signing of a loft lease does not negate the fact that the tenant 
          is entitled to the status of a rent stabilized tenant.

          Accordingly, the Rent Administrator's order issued under 
          docket 44062 finding no rent overcharge on the basis that the 
          subject apartment had been used commercially before being rented 
          to the tenant herein is revoked since no evidence has been 
          submitted to substantiate such commercial usage although both the 
          prior and current owners were afforded ample opportunity to do so 
          during the course of these multiple proceedings.  Further the Rent 
          Administrator's orders issued under dockets TC-079480-G, CDR 
          33,776 and docket TC-080685-G finding a rent overcharge based on 
          the failure to submit a complete rental history are revoked on the 
          basis that they conflict with the earlier order issued under 
          docket T/A 9980, CDR 30,281 which determined the fair market rent 
          of the subject apartment.

          Docket T/A 9980, CDR 30,281 is affirmed with the following 
          modifications.  Since the tenant submitted proof that he paid an 
          illegal broker's fee of $500.00 to the prior owner and the prior 
          owner has not refuted such proof although given an opportunity to 
          do so, the prior owner is directed to refund the $500.00 broker's 
          fee to the tenant.  Since the tenant and the current owner agree 
          that electricity is not included in the rent of the subject 
          apartment, the parties are advised that electricity is not 
          included in the rent and that the tenant must pay for electricity 
          in the subject apartment once the owner installs a separate 
          electric meter in the subject apartment.  The current owner 
          remains responsible for electricity costs prior to such 
          installation.  Since all parties agree that the current owner 
          purchased the subject premises in mid April 1984, the excess rent 
          owed the tenant from each owner is as follows:  The prior owner is 
          directed to refund $9017.51 representing excess rent for the 
          period from August 1, 1981 through April 30, 1984 plus the $500.00 
          broker's fee (included in the $9017.51 total).  This order is 
          issued without prejudice to the tenant's rights, if any, to 
          BG 410275 RO et al



          proceed against the former owner in a court of competent 
          jurisdiction.  The current owner is directed to refund to the  
          tenant $11,911.21, representing excess rent for the period from 
          May 1, 1984 through May 31, 1987 plus excess security (included in 
          the $11,911.21 total).

          With regard to the current owner's contention that it is 
          entitled to a 15% vacancy allowance upon the initial renting to 
          the subject tenant in 1981 and to subsequent renewal increases, it 
          is noted that no additional vacancy allowance is permitted to be 
          added to a fair market rent and that the owner was in fact 
          credited with a renewal increase effective August 1, 1984.

          Because this determination concerns lawful rents only through 
          May 31, 1987, the current owner is cautioned to adjust subsequent 
          rents to am amount no greater than that determined by this order 
          plus any lawful increases and to register any adjusted rents with 
          this order and opinion being given as the explanation for the 
          adjustments.

          The current owner is directed to roll back the rent to the 
          stabilized rent consistent with this decision and to refund or 
          fully credit against future rents over a period not exceeding six 
          months from the date of receipt of this order, the excess rent 
          collected by the current owner.

          In the event the current owner does not take appropriate 
          action to comply within 35 days from the date of this order, the 
          tenant may credit the excess rent collected by the current owner 
          against the next month(s) rent until fully offset.

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

          ORDERED, that the tenant's petition be and the same hereby is 
          granted, that the current owners and the prior owner's petitions 
          be, and the same hereby are, denied, that the Rent Administrator's 
          order issued under docket T/A 9980, CDR 30,281 be, and the same 
          hereby is, affirmed as modified in accordance with this order and 
          opinion, and that the Rent ADministrator's orders issued under 
          docket numbers 44062, TC-07948_G, CDR 33,776 and TC-080685-G be, 
          and the same hereby are, revoked. 

          ISSUED



                                                                        
                                          ELLIOT SANDER
                                          Deputy Commissioner




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






          ADMINISTRATIVE REVIEW BUREAU
                                COVERING MEMORANDUM






















          ARB Docket No.: BG 410275 RO, BJ 410001 RT, BI 410169 RO,          
                          CI 410262 RO, CJ 410191 RO







          DRO Docket No/Order No.: T/A 9980, 44062, TC-079480-G






                                   TC-080685-G
          Tenant(s): Eli Mayer







          Owner: Lui Jr. Realty Corp. and Quen-Dun Corporation by Yau






                 International, Inc.







          Code Section: 2526.1 and 2521.1 of RSC







          Premises: 178-180 Fifth Avenue, New York, New York, Apt 4 
                    (2nd floor)







          Order and Opinion Granting Tenant's Petition and Denying Prior 






          Owner's and Current Owner's Petitions                              
                           






          Tenant's petition granted and prior owner's and current 
          owner's petitions denied on the basis fair market rent of subject 






          apartment was correctly determined and rent overcharge complaints 
          in conflict with fair market rent determination must be revoked























          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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