BA410253RO(Reopened)
                             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. BA410253RO(Reopened)

                                          :  DISTRICT RENT OFFICE
                                             DOCKET NO. L3111091R
           David C. Gold,                               CDR28415

                                             TENANTS: Penny Creech &          
                                                      Laura Yaccarino

                            PETITIONER    : 
      ------------------------------------X                             

           ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW


      On January 22, 1987, the above-named petitioner filed a Petition for 
      Administrative Review against an order issued on December 19, 1986, by 
      the District Rent Administrator, 10 Columbus Circle, New York, New York, 
      concerning the housing accommodations known as 235 East 4th Street, 
      New York, New York, Apartment No. 2B, wherein the District Rent 
      Administrator determined that the tenants had been overcharged.

      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 overcharge and fair market 
      rent proceedings provide that determination of these matters be based 
      upon the law or code provision 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.

      The issue in this appeal is whether the District 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 by the filing in March, 1984 of 
      a complaint, dated June 28, 1983, by Penny Creech, naming Albert Garcia 
      and David C. Gold at 501 5th Avenue as the owners, stating that she had 
      commenced occupancy on May 3, 1983 at a rent of $321.00 per month, and 
      contending that the rent should be returned to the rent controlled rent 
      since the owner had been expelled from the rent stabilization system.  
      By complaint dated February 14, 1984 Penny Creech and Laura Yaccarino 
      filed another complaint naming only Alberto Garcia at 235 East 4th 
      Street as the owner.  Both complaints were received on March 28, 1984 
      and given the same docket number.

      The copy of the complaint sent to Alberto Garcia at 235 East 4th Street 
      was returned by the Postal Service.  A copy sent to 501 Fifth Avenue was 







          BA410253RO(Reopened)

      not returned.  On May 9, 1986 a Final Notice of Pending Default was sent 
      to Irar Properties at 95 Delancey Street.  No replies were received from 
      anyone in the proceeding except the tenants.

      In an order issued on December 19, 1986 the Administrator, using DHCR 
      default procedures, found an overcharge of $2,587.50 from May 3, 1983 to 
      May 2, 1984.  The order named Irar Properties at 95 Delancey Street as 
      the owner, and Albert Garcia and David Gold at 501 Fifth Avenue as the 
      prior owner.  It stated that "the former owner is directed to make full 
      refunds to the tenant for any rent collected by it in excess of the 
      lawful stabilized rent, during the period between May 3, 1983 and the 
      date that it sold the subject building."

      The copy of the order sent to Irar Properties was returned by the Postal 
      Service stamped "Addressee Unknown" after someone wrote "Send to new 
      owner" on the envelope.

      In this petition, David C. Gold by his attorney contends in substance 
      that he was never the owner of the subject premises; that, at most, the 
      firm of David C. Gold & Company Real Estate, Inc. was a former managing 
      agent of the building for a short time; that 235 East 4th Street Realty 
      Corp. was the former owner; and that the order should be revoked.  The 
      501 Fifth Avenue address of David Gold's attorney is the same address 
      given on one of the complaints as the owner's address.

      In answer, one tenant asserts in substance that the Administrator's 
      order should stand against Alberto Garcia of 235 East 4th Street Realty 
      Corp., Inc., and Malekan, President of Irar Properties, Inc.; that the 
      order should be modified against David C. Gold and Company, since the 
      tenants never listed in their complaint that David C. Gold was owner of 
      235 East 4th Street Realty Corp.; that Alberto Garcia owned and managed 
      the property for a number of years prior to selling it to Irar 
      Properties on November 26, 1984; that he initiated the overcharge, which 
      was continued by Irar Properties; that both continued the overcharge 
      despite being notified of it; and that the order should not be revoked 
      just because of a mistake regarding David C. Gold's relationship to 235 
      East 4th Realty Corporation, Inc.

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

      Section 2520.6(i) of the Rent Stabilization Code in pertinent part 
      defines an "owner" as:

           A fee owner, lessor, sublessor, assignee, net lessee, or a 
           proprietary lessee of a housing accommodation in a structure 
           or premises owned by a cooperative corporation or association, 
           or an owner of a condominium unit or the sponsor of such 
           cooperative corporation or association or condominium 
           development, or any other person or entity receiving or 
           entitled to receive rent for the use or occupation of any 
           housing accommodation, or an agent of any of the foregoing...

      A managing agent receiving rents is therefore an owner for the purposes 
      of the Rent Stabilization Code.
      Section 2526.1(f) of the Rent Stabilization Code provides in substance 
      that for overcharges collected prior to April 1, 1984, an owner will be 
      held responsible only for his or her portion of the overcharges, in the 
      absence of collusion or any relationship between such owner and any 


          BA410253RO(Reopened)

      prior owner; and that for overcharges collected on or after April 1, 
      1984, a current owner shall be responsible for all overcharge penalties, 
      including penalties based upon overcharges collected by any prior owner.  
      Although the initial registration shows Irar Properties, Inc. as being 
      the owner on April 1, 1984, the petitioner submitted a deed showing that 
      235 East 4th Street Realty Corp. sold the property to Irar Properties, 
      Inc. on November 26, 1984.  Pursuant to Section 2526.1(f) David C. Gold 
      & Company Real Estate, Inc. is liable to the tenants for overcharges 
      which it actually collected prior to April 1, 1984, and although David 
      C. Gold & Company may be able to claim indemnification from the fee 
      owner at the time for any such refund it makes to the tenants.  For 
      overcharges which David C. Gold & Company may have collected on and 
      after April 1, 1984 it is jointly and severally liable with the current 
      owner.  Since the current owner may have already made a refund to the 
      tenants for part or all of the overcharge award, this order is without 
      prejudice to any action that the current owner may have against the 
      petitioner for overcharges reimbursed by the current owner which the 
      petitioner had collected.

      The Commissioner notes that the subject apartment has not been 
      registered since 1984, and that the tenants moved to Apartment 3B in 
      1985 or 1986.  (The exact date is unknown since neither apartment 3B nor 
      any other apartment in the building was registered in 1985.)

      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 Rent Administrator's order be, and the same hereby is, affirmed.

      ISSUED:



                                                                    
                                      JOSEPH A. D'AGOSTA
                                      Deputy Commissioner





    

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