BH 610124 RO

                                  STATE OF NEW YORK
                            OFFICE OF RENT ADMINISTRATION
                                     GERTZ PLAZA
                               92-31 UNION HALL STREET
                               JAMAICA, NEW YORK 11433

          APPEAL OF                              DOCKET NO. BH 610124 RO
                                              :  DRO DOCKET NO.B-3100760-R/T
               RAFAEL V. ROMAN                   TENANT: JOSE RAMIREZ

                                PETITIONER    : 

               On August 14, 1987, the above-named petitioner-owner filed a 
          Petition for Administrative Review against an order issued on July 
          23, 1987, by the Rent Administrator, 10 Columbus Circle, New York, 
          New York, concerning the housing accommodations known as 1535 
          Westchester Avenue, Bronx, New York, Apartment No. 5A, wherein the 
          Rent Administrator determined that the owner had overcharged the 

          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 
          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 Administrative Appeal is being determined pursuant to the 
          provisions of Section 42A of the former Rent Stabilization Code 
          and Section 2526.1(f) of the current Rent Stabilization Code.

          The issue herein is whether the 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 rent overcharge complaint by the tenant who first 
          moved to the subject apartment on March 1, 1977 at a rental of 
          $210.00 per month.

          The owner was served with a copy of the complaint and was 
          directed to submit a complete rental history for the subject 
          apartment from the base date including copies of all leases.  In 

          BH 610124 RO
          response the owner stated that the exact rental history was 
          unknown and only submitted copies of leases from January 1, 1981.  
          In addition, the owner stated that it first purchased the subject 
          premises in February 1982, and that the City of New York has had 
          control of the subject premises since February 1985 pending 
          payment of past due taxes.  The owner also submitted a 1972-73 
          Maximum Base Rent Order which did not list the subject apartment 
          and stated that such form shows that the subject apartment had 
          been decontrolled prior to 1972.

          In Order Number CDR 40,007, the Rent Administrator determined 
          that due to the owner's failure to submit a complete rental 
          history, the owner had collected a rent overcharge of $1569.28 
          from March 1, 1977 through July 31, 1987, determined the lawful 
          stabilization rent was $274.65 effective June 1, 1986, and 
          directed the owner to refund the overcharge to the tenant.

          In this petition, the owner contends in substance that he 
          provided all the rental history he had, that the order requires a 
          credit to be issued for periods prior to February 1982 when the 
          owner herein first purchased the subject premises, that the order 
          does not take into account the amount of $1230.00 not paid by the 
          tenant from July 1981 to December 1981 assigned to the current 
          owner by the prior owner, that from November 1984 through 
          September 1985 the tenant was required to pay rent to New York 
          City and that the purchase agreement shows no security for the 
          subject apartment.

          In response to the owner's petition, the tenant stated in 
          substance that he did pay the $1230.00 claimed not to be paid by 
          the owner and that he did pay a security deposit.

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

          Section 42A of the former Rent Stabilization Code requires 
          that an owner retain complete records for each stabilized 
          apartment in effect from June 30, 1974 to date and produce them to 
          the DHCR upon demand.  If the apartment was decontrolled from the 
          Rent Control Law after June 30, 1974, the owner must provide 
          satisfactory documentary evidence of the apartment's date of 

          In the instant case, the owner has not provided a complete 
          rental history as mandated by Section 42A.  The owner has 
          submitted a rental history only from 1981.  Accordingly, the Rent 
          Administrator correctly established the lawful stabilization rent 
          utilizing the Section 42A default procedure.  However the evidence 
          of record including copies of leases discloses that the owner is 
          correct in his contention that he did not acquire the subject 
          premises  until February 1982.  Section 2526.1(f) of the current 
          Rent Stabilization Code provides in pertinent part 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 prior owner.  In this case, there is no evidence of any 

          BH 610124 RO
          collusion between the current owner and any prior owner.  
          Therefore the Rent Administrator's order is modified to show that 
          the current owner is only responsible for overcharges occurring 
          since February 1982 including excess security and interest on that 
          portion of the overcharge occurring on and after April 1, 1984 - a 
          total of $696.84.

          It is noted that the prior owner was not named by the tenant 
          and not made a party to this proceeding.  This order is issued 
          without prejudice to any action the tenant may have against the 
          prior owner in a court of competent jurisdiction.

          With regard to the owner's contentions about the tenant owing 
          $1230.00 in back rent to a prior owner which was credited to the 
          current owner, and that the tenant did not pay any security, it is 
          noted that such contentions may not properly be considered herein 
          because they were raised for the first time on appeal and this is 
          not a de novo proceeding.  Moreover, the owner has submitted no 
          evidence in support of these contentions.

          With regard to the owner's contention that the tenant paid 
          rent to New York City from November 1984 through September 1985, 
          it is noted that in the proceeding before the Rent Administrator, 
          the owner contended that New York City was in control of the 
          subject premises beginning in February 1985.  The owner has thus 
          made inconsistent allegations regarding this issue and moreover 
          has submitted no evidence in support thereof.  Accordingly, the 
          Rent Administrator correctly did not consider such alleged control 
          of the subject premises by New York City in the order appealed 

          Because this determination concerns lawful rents only 
          through July 31, 1987, the owner is cautioned to adjust subsequent 
          rents to an amount no greater than that determined by the Rent 
          Administrator's order plus any lawful increases, and to register 
          any adjusted rents with this order and opinion being given as the 
          explanation for the adjustment.

          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, not in excess of twenty percent per month 
          of the overcharge may be offset against any rent thereafter due 
          the owner.

          If the owner has already complied with the Rent 
          Administrator's order and there are arrears due to the owner as a 
          result of the instant determination, the tenant shall be permitted 
          to pay off the arrears in twelve equal monthly installments.  
          Should the tenant vacate after the issuance of this order, or have 

          already vacated said arrears shall be payable immediately.

          THEREFORE, in accordance with the provisions of the Rent 
          Stabilization Law and Code, it is

          ORDERED, that this petition for administrative review be, and 

          BH 610124 RO
          the same hereby is, granted in part, and, that the order of the 
          Rent Administrator be, and the same hereby is, modified to show 
          that the owner herein is responsible for refunding a total 
          overcharge of $696.84 (amount of overcharge from February 1, 1982 
          through July 31, 1987).  In all other respects, the Rent 
          Administrator's order is affirmed.


                                          JOSEPH A. D'AGOSTA
                                          Deputy Commissioner



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