BI 210210-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 
          IN THE MATTER OF THE ADMINISTRATIVE    ADMINISTRATIVE REVIEW
          APPEAL OF                              DOCKET NO.: BI 210210-RO

                                                 DISTRICT RENT OFFICE
               Samuel Mandel (401 76th Street    DOCKET NO.: K-3102339-R
               Corporation),                                 CDR 31033
                                                 
                                                 TENANT: Margie Ambrosino    
                                 PETITIONER    
          ------------------------------------X                             


            ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW


          On September 16, 1987 the above-named petitioner-owner filed a 
          Petition for Administrative Review against an order issued on     
          August 12, 1987 by the District Rent Administrator, 10 Columbus 
          Circle, New York, New York concerning the housing accommodations 
          known as 401 76th Street, Brooklyn, New York, Apartment No. 4D 
          wherein the Rent Administrator determined that the owner had 
          overcharged the tenant.

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

          The applicable sections of the Law are Section 26-516 of the Rent 
          Stabilization Law and Section 2526.1(a) 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 
          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, in which she 
          stated that she had commenced occupancy of Apartment 4D on February 
          15, 1984 at a rent of $478.00 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 answer to the complaint, the owner submitted leases 
          from October 1, 1979, which he contended were all the leases in his 
          possession, as well as submitting a list of tenants' names, lease 
          terms and rents since June 30, 1974.













          BI 210210-RO

          In an order issued on August 12, 1987 the Administrator utilized 
          DHCR default procedures to set the tenant's lawful stabilization 
          rent, and determined an overcharge of $4,149.01 as of August 31, 
          1987, including excess security of $566.20.

          In this petition, the owner contends in substance that he was under 
          a belief that the tenant had withdrawn her complaint in September, 
          1984; that he did not hear from the DHCR until receiving a Final 
          Notice of Pending Default 18 months after that, requesting all 
          leases from the base date; that he indeed submitted all the leases 
          in his possession, but did not submit rent ledgers since they were 
          not requested; and that the documents now submitted should be 
          considered for the purpose of establishing a complete rental 
          history.  With his petition the owner has enclosed rent ledgers 
          from 1973.

          In answer, the tenant asserts in substance that she never said that 
          she would withdraw her complaint, that the Administrator's order 
          was warranted, that the owner knew what was required, and that she 
          doubts that a new stove was installed in 1981.

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

          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 (or the date the apartment became subject 
          to rent stabilization, if later) and to produce such records to the 
          DHCR upon demand.

          Section 26-516 of the Rent Stabilization Law, effective April 1, 
          1984, limited an owner's obligation to provide rent records by 
          providing that an owner may not be required to maintain or to 
          produce rent records for more than four (4) years prior to the most 
          recent registration and, concomitantly, established a four year 
          limitation on the calculation of rent overcharges.

          It has been the DHCR's policy that overcharge complaints filed 
          prior to April 1, 1984, are to be processed pursuant to the Law or 
          Code in effect on March 31, 1984. [See Section 2526.1 (a) (4) of 
          the current Rent Stabilization Code.]  The DHCR has therefore 
          applied Section 42A of the former Code to overcharge complaints 
          filed prior to April 1, 1984, requiring complete rent records in 
          these cases.  In following this policy, the DHCR has sought to be 
          consistent with the legislative intent of the Omnibus Housing Act 
          (Chapter 403, Laws of 1983), as implemented by the New York City 
          Conciliation and Appeals Board (CAB), the predecessor agency to the 
          DHCR, to determine rent overcharge complaints filed with the CAB 
          prior to April 1, 1984, by applying the law in effect at the time 
          such complaints were filed so as not to deprive such tenants of 
          their rights to have the lawful stabilized rent determined from the 
          June 30, 1974 base date and so as not to deprive tenants whose 






          BI 210210-RO

          overcharge claims accrued more than four years prior to April 1, 
          1984 of the right to recover such overcharges.  In such cases, if 
          the owner failed to produce the required rent records, the lawful 
          stabilized rent would be determined pursuant to the default 
          procedure approved by the Court of Appeals in 61 Jane Street 
          Associates v. CAB, 65 N.Y.2d 898, 493 N.Y.S. 2d 455 (1985), in 
          cases involving rent overcharge complaints filed prior to April 1, 
          1984.

          However, it has recently been held in the case of J.R.D. Mgmt. v. 
          Eimicke, 148 A.D.2d 610, 539 N.Y.S. 2d 667 (App. Div. 2d Dept., 
          1989), motion for leave to reargue or for leave to appeal to the 
          Court of Appeals denied ( App. Div. 2d Dept., N.Y.L.J., June 28, 
          1989, p.25, col.1), motion for leave to appeal to the Court of 
          Appeals denied (Court of Appeals, N.Y.L.J., Nov. 24, 1989, p.24, 
          col.4), motion for leave to reargue denied (Court of Appeals, 
          N.Y.L.J., Feb. 15, 1990, p.25, col.1), that the Law in effect at 
          the time of the determination of the administrative complaint 
          rather than the Law in effect at the time of the filing of the 
          complaint must be applied and that the DHCR could not require an 
          owner to produce more than four years of rent records.

          Since the issuance of the decision in JRD, the Appellate Division, 
          First Department, in the case of Lavanant v. DHCR, 148 A.D.2d 185, 
          544 N.Y.S.2d 331 (App. Div. 1st Dept. 1989), has issued a decision 
          in direct conflict with the holding in JRD.  The Lavanant court 
          expressly rejected the JRD ruling, finding that the DHCR may 
          properly require an owner to submit complete rent records, rather 
          than records for just four years, and that such requirement is both 
          rational and supported by the Law and legislative history of the 
          Omnibus Housing Act.

          Since in the present case the subject dwelling unit is located in 
          the Second Department, the DHCR is constrained to follow the JRD 
          decision in determining the tenant's overcharge complaint.  The 
          owner has submitted rent records back to before April 1, 1980. The 
          rent ledgers concerning the lease commencing October 1,1979 confirm 
          the information listed by the owner in his submission to the 
          Administrator.  The Commissioner has used the rent in that lease as 
          the base date rent, and has calculated the lawful stabilization 
          rents and the amounts of overcharge.  They are set forth on an 
          amended rent calculation chart attached hereto and made a part 
          hereof.

          Regarding the tenant's contention that no new stove was in stalled, 
          she has submitted no evidence to controvert the November 15, 1981 
          invoice submitted by the owner for the purchase of a stove for the 
          subject apartment.

          The owner is cautioned to adjust the rent, in leases after those 
          considered in this order, to amounts no greater than that 
          determined by this order plus any lawful increases, and to register 












          BI 210210-RO

          any adjusted rent, with this order being given as the reason for 
          the adjustment.

          If there are arrears due to the owner as a result of the present 
          determination, the owner is directed to allow the tenant to pay off 
          the arrears in twenty four equal monthly installments.  Should the 
          tenant vacate after the issuance of this order, or have previously 
          vacated, said arrears shall be payable immediately.

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

          ORDERED, that this Petition be, and the same hereby is, granted and 
          that the Rent Administrator's order be, and the same hereby is, 
          modified in accordance with this Order and Opinion.  The lawful 
          stabilization rents and the amount of overcharge are established on 
          the attached chart, which is fully made a part of this order.  The 
          total overcharge is $0.66 as of August 31, 1987, including excess 
          security of $0.02.  The lawful 
          stabilization rent is $552.28 per month in the lease from 
          March 1, 1987 to February 28, 1989.  


          ISSUED:



                                                                      
                                          JOSEPH A. D'AGOSTA
                                          Acting Deputy Commissioner




                     























          BI 210210-RO





















    

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