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 NO.: BB 810335 RO
                                                                           
               
            FRAKEN BUILDERS, INC.     

                                               DRO DOCKET NO.: WNR 86-S-84/R
                                             
                                                  TENANT: TAMMY PALUMBO
                                PETITIONERS
          ----------------------------------X                              


            ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW








          The above-named petitioner-owner timely filed a Petition for 
          Administrative Review against an order issued on January 27, 1987, 
          by the Rent Administrator at 99 Church Street, White Plains, New 
          York, concerning housing accommodations known as apartment number 
          1A at 769 Pelham Road, New Rochelle, New York, wherein the 
          Administrator found that the owner had overcharged the tenant 
          $515.00 by collecting that sum from the tenant under the guise of 
          "key money" and directed the owner to refund said sum to the 
          tenant. 



          The Commissioner has reviewed all of the evidence in the record and 
          has carefully considered that portion of the evidence relevant to 
          the issues raised in the administrative appeal.



          The issue in this appeal is whether the relief denied to a tenant 
          in a prior proceeding may be granted to that tenant in a 
          subsequently opened proceeding based, essentially, on the same 
          facts but with the additional allegation that the tenant has 












          located amongst the tenant's own records, and is now submitting, 
          certain documentary evidence which proves the tenant's entitlement 
          to the relief sought.


          This proceeding was originally commenced on August 18, 1986, by the 
          tenant's filing of a complaint of rent overcharge. The tenant 
          alleged that the tenant had taken occupancy on December 15, 1983 
          under a lease whose term commenced on that date and expired on 
          December 31, 1985; and which provided for a monthly rental of 
          $515.00. The tenant also alleged that at or about the time the 
          tenant took occupancy, the tenant had paid one half month's rent 
          for the balance of December, 1983 ($257.50 by check #117), January 
          1984's rent ($515.00 by check #127), a security deposit equal to 
          one month's rent ($465.00 by check #118: which, with the tenant's 
          $50.00 deposit added up to $515.00) and $515.00 "key money" in cash 
          (which the tenant claims is evidenced by a receipt dated December 
          11, 1983). The tenant further alleges in the complaint that "I had 
          filed another RA-89 [overcharge complaint form] for refund of the 
          key money, but neglected to attach all of the supporting evidence 
          for my case. This time all appropriate copies of checks and 
          receipts are attached."



          In its answer to the complaint and in response to the 
          Administrator's request for additional information, the owner, in 
          substance, cited the Administrator's order of July 24, 1986 (issued 
          under Docket Number WNR86-S-40/R) wherein the Administrator had 
          found that the tenant had failed to submit any evidence to 
          substantiate the claim of paying an amount in addition to one 
          month's rent and one month's security; argued that the issues had 
          been disposed by that order; asserted that the December 11, 1983 
          receipt, on its face, states that it was for February's [1984] 
          rent; and requested a hearing on the facts.



          In the appealed order the Administrator stated that the tenant had 
          proven that she had been overcharged $515.00.



          In its Petition for Administrative Review, the owner asserts, in 
          substance, that the Administrator had ignored proper procedure in 
          opening a second proceeding, based on evidence that was always in 
          the tenant's possession, after the tenant had been denied the 
          relief sought in the first proceeding; the proper procedure would 
          have been for the tenant to have filed a petition for 
          administrative review from the first order; this violation of 
          proper procedure was  compounded by the substance of the second 
          (the appealed) order; the $515.00 paid by the tenant, and which the 
          tenant alleged was "key money" was the February, 1984 rent payment; 
          and it was error for the Administrator to have issued the appealed 






          order without requiring the tenant to show that that was not the 
          February rent payment and without holding a hearing. 



          Although afforded the opportunity to do so, the tenant has failed 
          to respond to the Petition.


          The Commissioner is of the opinion that the petition should be 
          granted.



          The Commissioner finds that the tenant had not appealed the July 
          24, 1986 order; that in that order the Administrator indicated that 
          the December 11, 1983 receipt had been before him; that it was 
          error for the Administrator to have opened a second proceeding 
          based on these same facts as there had not been (nor has there 
          since been) a showing that the prior order was issued as the result 
          of illegality, irregularity in a vital matter or fraud; and that 
          the receipt on which the tenant relies states on its face that it 
          is a receipt for February's rent: in summary, both procedurally and 
          substantively, the appealed order was issued in error. 

          The Commissioner therefore finds that the petition should be 
          granted and the appealed order should be revoked. 


          THEREFORE, pursuant to all of the applicable statutes and 
          regulations, it is

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

          ISSUED:


                                                                  
                                          JOSEPH A. D'AGOSTA
                                          Acting Deputy Commissioner






    

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