BH 110118-RT
                                
                        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.:
                                        BH 110118-RT
       KENNETH S. LEIKIND
              and                       DISTRICT RENT
         MOHAMED S. ALY,                ADMINISTRATOR'S DOCKET
NO.:
                        PETITIONERS     38804
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  ORDER AND OPINION PERMITTING WITHDRAWAL OF COMPLAINT NUNC PRO
                              TUNC
                   AND TERMINATING PROCEEDING
                                
                                
The  above-named petitioner-tenants filed a Petition for Adminis-
trative  Review against an order issued on July 23, 1987  by  the
Rent  Administrator at 10 Columbus Circle, New  York,  New  York,
concerning housing accommodations known as Apartment 5-J at 25-50
30th  Road,  Queens,  New York, wherein the Administrator  estab-
lished  the  stabilized rent and directed  the  owner  to  refund
$1,289.08 including treble damages from April 1, 1984.

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

This proceeding was originally commenced on November 2, 1984,  by
the  filing of an objection to the initial legal registered rent.
In the objection, the tenants alleged that they took occupancy of
the  subject  apartment on July 15, 1984 under a  one-year  lease
providing for a monthly rent of $546.00; that they never received
a  registration statement; and that the rent in their lease is an
overcharge or not the legal rent.

The  owners, Bill Kartsonis and Irene Ladas, submitted  a  rental
history  from the base date; including copies of documents  which
they  claimed proved that $6,560.00 had been expended to  improve
the  apartment.  The owners asserted that they had been  entitled
to  increase the initial legal registered rent by 1/40th of  said
costs.   The owners also argued that the petitioner-tenants  were
not entitled to object to the initial registration statement
because a copy of it had been sent to the prior tenant Jose Luis
Loa,  by mailing the same to said prior tenant on June 29,  1984,
on which date Jose Luis Loa was the tenant in occupancy.

In the appealed order the Administrator stated that the tenant in
possession on April 1, 1984, and not a tenant who took  occupancy
thereafter, was entitled to receive a copy of the 1984  registra-
tion  statement.  The Administrator then stated  that  since  the
1984  apartment registration had been mailed to the prior tenant,
the   petitioner-tenants'   "claim   concerning   the   apartment
registra-tion  is dismissed".  The Administrator  calculated  the
stabilized rent under the tenants' vacancy lease using the method
authorized in subsection 2521.1(b) of the Code effective  May  1,
1987, which subsection reads, in pertinent part, as follows:

          (b)For those housing accommodations for which  the
          tenant files a timely challenge in accordance with
          section 2526.1()(3) (ii) of this Title (Overcharge
          Penalties)  to the initial legal registered  rent,
          such  rent shall be determined by the DHCR as fol-
          lows:
          
               (1)for  housing accommodations other than  in
               hotels, the rent charged and paid on April 1,
               1980,  plus the lawful increases charged  and
               paid up to March 31, 1984;
               
Using this procedure, the Administrator determined that the base
rent  for  calculating  the stabilized rent  under  the  tenants'
vacancy  lease  was  not  the  rent  set  forth  in  the  initial
registra-tion  statement, $515.00, but the  stabilized  rent  the
prior tenant should have been charged ($304.95 [as opposed to the
$305.45  reserved in the prior tenant's last renewal lease]  plus
1/40th  of  the cost ($6,560.00/40 = $164.00) of the improvements
the owner claimed to have made before the tenants took occupancy.

In  their  Petition, the tenants allege, in substance,  the  fol-
lowing:

          1.The work claimed to have been done at the apart-
          ment was ordinary maintenance and repair work, not
          the installation of new equipment or improvements.
          The owner should not, therefore, have been permit-
          ted an increase in the rent based on said work.
          
          2.The order below should have determined the over-
          charges, and assessed treble damages on the  same,
          up  to  the time the order was issued:   July  23,
          1987.  The tenants attach to their petition a copy
          of  their  August 1, 1985 through  July  31,  1986
          lease  and their August 1, 1986 through  July  31,
          1988 lease.
          
In their answer opposing the Petition, the owners assert that the
tenants  raise  no new issues of law or fact, and that  all  such
is-sues   raised   below   were  properly   determined   by   the
Administrator.  The owner's further argue that the  tenants  were
barred from asserting an overcharge complaint because they  filed
their  objec-tions to the initial registered rent on November  2,
1984,   which  was  more  than  ninety  days  after  the  initial
registration state-ment was served on the prior tenant  (on  June
29, 1984) and more than ninety days after they took occupancy (on
July 15, 1984).

The  questions of fact raised herein were referred  for  an  oral
hearing before an Administrative Law Judge.  At that hearing, the
parties  reached a settlement of their dispute.  That  settlement
was  memorialized in a written stipulation.  The  terms  of  that
stipulation are, in substance, as follows:

          1.Under the terms and conditions set forth in  the
          stipulation, the tenants withdrew their  complaint
          and PAR with prejudice;
          
          2.The owners will pay the tenants $20,000.00 on or
          before September 15, 1991.
          
          3.The parties will exchange releases.
          
          4.The  parties will execute a new lease, effective
          August  1,  1991  to July 31, 1992  at  a  monthly
          rental of $511.00, which all parties agree is  the
          legal  regulated rent and will be  the  registered
          rent.
          
The  Commissioner  is of the opinion that the  tenant  should  be
permitted  to  withdraw  the  complaint  herein,  and  that  this
proceeding should be terminated.

The  Commissioner notes that the issues herein involve  questions
of  fact, and both parties have clearly indicated their desire to
resolve  this matter.  The Commissioner also notes that the  ten-
ants  have  had the assistance of a community group, Woodside  on
the Move, in dealing with these proceedings.

The  Commissioner finds, based on all of the aforegoing, that the
tenant's complaint should be permitted to be withdrawn (nunc  pro
tunc) ["now for then"] pursuant to Code Section 2520.13; that the
negotiated settlement entered into between the parties should  be
approved  by  the  DHCR nunc pro tunc, and that  this  proceeding
should be terminated.

THEREFORE, pursuant to the Rent Stabilization Law and Code it is

ORDERED,  that  the complaint below be, and the same  hereby  is,
deemed  withdrawn; that the Administrator's order below  be,  and
the  same  hereby is, revoked; that the settlement agreement  be,
and the same hereby is, approve; that the Petition herein be, and
the  same  hereby is, deemed withdrawn; and that this  proceeding
be, and the same hereby is, terminated.


ISSUED:




ELLIOT SANDER
                                         Deputy Commissioner

    

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