BH 410294 RO
                                  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    S.J.R. 6170
          IN THE MATTER OF THE ADMINISTRATIVE    ADMINISTRATIVE REVIEW      
          APPEAL OF                              DOCKET NO.: BH 410294 RO

                     PAGE MANAGEMENT,
                                                 DRO DOCKET NO.: TC 083062 G
                                                 TENANT: DAVID AND DIANE NELSON
                                  PETITIONER
          ----------------------------------X                                   

          ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW      
                                        IN PART

          On August 17, 1987 the above-named petitioner-owner filed a 
          Petition for Administrative Review against an order issued on July 
          14, 1987 by the Rent Administrator, 10 Columbus Circle, New York, 
          New York, concerning housing accommodations known as Apartment 6 at 
          5 Jones Street, New York, New York, wherein the Rent Administrator 
          determined that the owner had overcharged the tenant.  On November 
          7, 1991, the Commissioner granted the owner's petition in part.

          Subsequent thereto, the petitioner owner filed a petition in the 
          Supreme Court pursuant to Article 78 of the Civil Practice Law and 
          Rules requesting that the Commissioner's order be annulled.  The 
          proceeding was then remitted to the Division for reconsideration.

          The Commissioner notes that this proceeding was initiated 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.

          The issue in this appeal is whether the Rent Administrator's order 
          was warranted.

          The applicable section of the Law is Section 2526.1 of the current 
          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 












          BH 410294 RO

          issues raised by the administrative appeal.

          This proceeding was originally commenced by the filing in February 
          1984 of a rent overcharge complaint by the tenants who stated that 
          they first moved to the subject apartment on August 9, 1978 at a 
          rental of $295.00 per month.

          The owner was served with a copy of the complaint and was requested 
          to submit rent records to prove the lawfulness of the rent being 
          charged.  In response the owner submitted a complete rental history 
          as required.  Subsequently the tenants advised that they had moved 
          from the subject apartment.

          In Order Number CDR 30,868, the District Rent Administrator 
          determined that the tenant had been overcharged in the amount of 
          $11,514.31 including excess security and interest on that part of 
          the overcharge occurring on and after April 1, 1984 and directed 
          the owner to refund such overcharge to the tenant. 

          In this petition, the owner alleges in substance that although 
          there were three vacancies during the Guideline 8 period, it was 
          only credited with one vacancy allowance rather than three and that 
          the fuel adjustment allowances under Guideline 10b and 10c were 
          incorrectly calculated.

          In its Article 78 Petition, the owner stated the vacancy allowance 
          attributable to the Sanjurjo tenancy (January 1, 1977 to December 
          31, 1979) should not have been allowed since Sanjurjo in fact 
          occupied a different apartment but that the owner should have been 
          allowed a 5% vacancy allowance commencing February 1, 1978 during 
          the Randazzo tenancy (2 year vacancy lease commencing May 1, 1977) 
          due to the occupancy of a new co-tenant Goldberg.

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

          An examination of the records in this case discloses that the owner 
          is correct in its contention that the fuel adjustment allowances 
          under Guideline 10b and 10c were incorrectly calculated in that the 
          owner was not credited with the 2% temporary surcharge to which it 
          was entitled but only credited with the $12.00 temporary fuel 
          surcharge and such $12.00 was allowable for an incorrect time 
          period from March 1, 1979 to August 1, 1979 rather than from 
          January 1, 1980 to July 1, 1980.  Further the owner is entitled to 
          two vacancy allowances during the Guideline 8 period-one for the 
          Holbrick tenancy and one for the Randazzo-Lefkowitz tenancy.  The 
          owner is correct in its contention that the Sanjurjo lease should 
          not have been included in the original rent calculation chart since 
          Mr. Sanjurjo occupied another apartment in the subject premises 
          although it is noted that it was the owner itself who first 
          presented said Sanjurjo lease as part of the rental history both in 
          the proceeding before the Rent Administrator and at the PAR level.  






          BH 410294 RO

          In addition the use of the Sanjurjo tenancy did not affect the 
          subsequent rent of the subject apartment because said tenancy 
          commenced on January 1, 1977, was within three months of the 
          Halbrich tenancy and was within the same guideline period.  In any 
          event, the Sanjurjo tenancy has now been deleted from the rent 
          history chart.

          With regard to the owner's contention, raised for the first time in 
          its Article 78 petition, that it is entitled to a 5% rent increase 
          effective February 1, 1978 for amending the Randazzo-Lefkowitz two 
          year vacancy lease commencing May 1, 1977, the Commissioner is of 
          the opinion that such contention is without merit.  It is noted 
          that the owner submitted a statement dated February 23, 1978 to the 
          effect that Ben Randazzo and Monte Goldberg had agreed to pay a 5% 
          increase in rent as of February 1978 amending original lease.  
          Randazzo and Goldberg then vacated the subject apartment by August 
          1978.  In order to obtain a 5% vacancy increase effective as part 
          of the base rent for future leases, the owner would have had to 
          issue a new lease in the name of both Randazzo and Goldberg and 
          void the prior lease-an action not taken by the owner in this case.  
          It is further noted that CAB Opinion Number 23,048 referred to by 
          the owner in its Article 78 petition does not support the owner's 
          contention herein since such opinion dealt with a situation where 
          a tenant's initial lease had expired and it was determined that the 
          subsequent lease would be a vacancy lease rather than a renewal 
          lease because a co-tenant was added to the subsequent lease.  In 
          the instant proceeding, no new lease was issued in the name of 
          Randazzo and Goldberg.

          Taking the aforementioned factors into account, the Commissioner 
          has recalculated the lawful stabilization rents and amount of the 
          rent overcharge for the subject apartment.  The lawful 
          stabilization rents and amount of the rent overcharge are set forth 
          on the amended rent calculation chart attached hereto and made a 
          part hereof.

          Because this determination concerns lawful rents only through the 
          date of February 28, 1987 used in the Administrator's order being 
          appealed, the owner is cautioned to adjust subsequent rents to an 
          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 adjustment.

          This order may upon the expiration of the period in which the owner 
          may institute a proceeding pursuant to Article 78 of the Civil 
          Practice Law and Rules, be filed and enforced in the same manner as 
          a judgment.

          A copy of this order is being sent to the tenant now in occupancy 
          at the subject apartment.

          THEREFORE, in accordance with the Rent Stabilization Law and Code, 












          BH 410294 RO

          it is

          ORDERED, that this petition be, and the same hereby is, granted in 
          part, that the Rent Administrator's order be, and the same hereby 
          is, modified in accordance with this Order and Opinion and that the 
          Commissioner's prior Order and Opinion issued on November 7, 1991 
          be, and the same hereby is, affirmed as modified herein.  The 
          lawful stabilization rents and amount of rent overcharge are 
          established on the attached chart which is fully made a part of 
          this order.  The amount of the rent overcharge through February 28, 
          1987 is $10,169.30.





          ISSUED:
                                                  ------------------------
                                                  JOSEPH A. D'AGOSTA
                                                  Acting Deputy Commissioner
           
             
                                          
    

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