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. BD 110052-RO
                                         :  
                                            DISTRICT RENT ADMINISTRATOR'S
       P.M.T.X. REALTY CORP.,               DOCKET NO. K 3105475-R
                           PETITIONER    : 
     ------------------------------------X  TENANT: MILDRED ROBINSON   

           ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW

     On  April  6,  1987,  the  above-named  owner   filed   a   petition   for
     administrative review of an order issued on March 11, 1987 by  a  District
     Rent Administrator concerning the  housing  accommodations  known  as  712
     Crown Street, Apartment C15, Brooklyn, New York, wherein the Administrator 
     determined that a rent overcharge occurred.

     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 petition for review.

     The proceeding was commenced on March  28,  1984  upon  the  filing  of  a
     complaint of rent overcharge by the tenant with the former New  York  City
     Conciliation and Appeals Board (CAB).  The tenant stated  that  her  lease
     included no rental history, and she requested a general rent  review  from
     the base date.  She stated that she moved into the  subject  apartment  on
     May 15, 1978.

     On  April  1,  1984,  responsibility  for  the  administration   of   rent
     stabilization in New York City was  transferred  to  the  New  York  State
     Division of Housing and Community Renewal (DHCR).  

     On March 31, 1986, DHCR received the  owner's  submissions.   Included  in
     these submissions were the Owner's Report of Vacancy Decontrol (R-42)  and
     complete copies of all leases from the alleged base date.  The submissions 
     indicated that the complainant-tenant was the first stabilized  tenant  in
     May of 1978.

     In the order here under review, the  Rent  Administrator  determined  that
     the owner had defaulted in its obligation to  provide  a  complete  rental
     history.  The lawful stabilization rent was established at $287.26 for the 
     lease of October 1, 1985 through September 30, 1986.  The overcharges were 
     determined to be $3,438.17 including  interest  on  overcharges  occurring
     after April 1, 1984 and excess security through September 30, 1986.

     In its petition for administrative review, the owner  alleges  that  since
     this tenant was the first stabilized tenant, the  Administrator  erred  in
     treating this proceeding as a complaint of overcharge.  The owner asserts 








          DOCKET NUMBER: BD 110052-R0
     that the Administrator should have established the lawful rent based on  a
     comparability study and treated this proceeding  as  a  fair  market  rent
     appeal.

     Subsequently, a separate proceeding under  Docket  No.  FB  210001-HM  was
     instituted by the Enforcement Unit of DHCR.  The owner  was  charged  with
     engaging in evasive  practices,  including  the  submission  of  falsified
     documents.  In a Stipulation of Settlement in that proceeding, the  owners
     acknowledged that they had evaded the rent laws.

     After careful consideration, the Commissioner is of the opinion that  this
     petition should be denied.

     The one allegation raised by the owner in the petition for review has been 
     rendered  moot  by  the  owner's  acknowledged  evasive  practices.    The
     Commissioner will not consider the R-42 submitted by the owner.  
     Accordingly, the owner failed to establish that the complainant-tenant was 
     the first stabilized tenant, and the Administrator correctly treated  this
     proceeding as an overcharge and not as a fair market rent  appeal.   Since
     the owner raises no other issues of  law  or  fact  in  its  petition  for
     review, the Commissioner must deny this petition for review.

     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 Administrator's order be, and the same hereby is, affirmed; and it is

     FURTHER ORDERED, that the owner shall immediately refund to the tenant all 
     amounts not yet refunded representing  overcharges,  interest  and  excess
     security; and it is

     FURTHER ORDERED, that if the owner has refunded no such amounts  upon  the
     expiration of the  period  for  seeking  judicial  review  of  this  order
     pursuant to Article 78 of the Civil Practice Law and Rules, the tenant may 
     recover such amounts by deducting them from the rent due to the owner.  If 
     after such period, the owner has refunded no such amounts and  the  tenant
     has not made any such deductions from her rent  as  an  offset,  then  the
     tenant may file and enforce a certified copy of this order as  a  judgment
     for the amount of $3,438.17 against the owner.

     ISSUED:






                                                                   
                                     ELLIOT SANDER
                                     Deputy Commissioner




                                                   

    

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